Evans and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 896
•12 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 896
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/98
GENERAL ADMINISTRATIVE DIVISION ) Re SHAUN MICHAEL EVANS Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis QC, Deputy President Date12 September 2003
PlaceSydney
Decision The decision under review is set aside. The matter is remitted to the Respondent for further consideration with a direction that the application is not to be refused on the ground that the Visa Applicant does not satisfy the Character Test.
[Sgd] The Hon RNJ Purvis QC Deputy President
CATCHWORDS
IMMIGRATION - spouse visa - character test – Protection visa application lodged as de facto spouse of Principal Applicant – application to Refugee Review Tribunal – appeal to Federal Court to second named Applicant – appeal to Full Court of Federal Court dismissed – application for Ministerial intervention – Visa Applicant overstaying visa and working in Australia – application for subclass section 309 visa refused –false and misleading information in application – Applicant not author of application – application form filled in by person organising escape from Georgia – false documents prepared or obtained by same person – group travel to Australia– Visa applicant not found to be not of good character – discretionary considerations would have weighed in her favour - decision under review set aside.
LEGISLATION
Migration Act 1958 sections 234, 501
Ministerial Direction 21
CASE LAW
Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432
Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 342
Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2000] AATA 1244
Re Lachmaiya and Department of Immigration and Ethnic Affairs [AATA 9295, 8 February 1994)
REASONS FOR DECISION
12 September 2003 The Hon R N J Purvis QC, Deputy President THE APPLICATION
1. This is an application made by Mr Shaun Michael Evans ("the Applicant") seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") on 20 December 2002. By such decision the Respondent refused to grant to Ms Maya Gogsadze Evans ("the Visa Applicant") a spouse visa (subclass section 309).
2. In the decision record supporting the above mentioned refusal and with reference to the character issue the Respondent inter alia stated (T2, p8 – 10):
"...
PART C ASSESSMENT FOR REFUSAL
Ms Gogsadze has provided false or misleading information to the Department in relation to several visa applications, including her visitor visa and spouse visa applications. She has also provided a substantial amount of fraudulent documentation in support of her visitor visa application lodged in Moscow in 1998.
Ms Gogsadze stated at interview in August 2002 that she provided false and misleading information as well as fraudulent documentation in support of her visitor visa in order to gain entry into Australia. She acknowledged this and provided some detail as to how her application was compiled and lodged and that it was done so with the intent of remaining in Australia and not returning.
…
In regard to being an unlawful non-citizen, records shows that Ms Gogsadze did not hold a valid visa for over 15 months, between 19 October 2000 and 20 February 2002.
…
In addition to this, Ms Gogsadze worked illegally in Australia for approximately 03 years and 03 months; part of that time she held a valid BVA (with no right to work), although for over 15 months she worked while being an unlawful citizen.
…
All in all, Ms Gogsadze did not accept any wrongdoing on her part, expressed no regret over her actions, and considered it her right to obtain the grant of a spouse visa.
…
In light of Ms Gogsadze's own letter and her statements at interview, I do not accept that she acknowledges her wrong doing or regrets her actions. On the contrary, and based on all of the evidence before me, I find that Ms Gogsadze has, and continues to, demonstrate complete disregard for Australian migration law … I am, therefore, satisfied that Ms Gogsadze was aware of the seriousness of providing false and misleading information at interview but chose to do so regardless of the consequences.
…
There is no evidence before me that Ms Gogsadze has demonstrated good conduct.
…
I do not accept Ms Odtajan's statement. On the contrary, I note that at interview on 18 August 2002, Ms Gogsadze continued to provide false and/or misleading information about aspects of her visitor application, about her unlawful status in Australia and about working while in Australia.
…"
3. The Respondent further maintained (T2, p11):
"…
As outlined above, Ms Gogsadze has provided a significant amount of false and misleading information in relation to her visitor visa application, her unlawful status in Australia and her failure to comply with visa conditions. She also submitted fraudulent documentation in support of her visitor visa application.
In addition, and despite being warned about the seriousness of providing false or misleading information, Ms Gogsadze did just that at her interview in August 2002.
As noted above, I find that Ms Gogsadze has, and continues to, demonstrate complete disregard for Australian migration law. In these circumstances, I consider it highly likely that Ms Gogsadze would engage in similar conduct in the event of a grant of a subclass 309 visa (which results in temporary, not permanent residence).
…
A refusal of Ms Gogsadze on character grounds may deter other people from committing the same or a similar offence.
…
There is a general expectation within the Australian community that visa applicants will not provide false or misleading information to obtain entry.
…
Ms Gogsadze has a daughter Sophio Tabidze (DOB 17 March 1988) who lives with her grandmother in Georgia. Sophio's grandmother, Tina Burdganadze, is her legal guardian and has raised Sophio since her mother departed Georgia in June 1998. Sophio is included in Ms Gogsadze's migration application. Sophio has never been to Australia and has always lived in Georgia.
…
A decision to refuse the grant of a visa to Ms Gogsadze will not deprive Sophio from access to her mother, her father or her grandmother.
Based on these circumstances, I am satisfied that refusing Ms Gogsadze's application will not disrupt Sophio's life and that a refusal would be consistent with her best interests.
…
Mr Evans has three daughters aged between twelve and sixteen from a previous relationship, who do not reside with him.
…
A decision to refuse the grant of a visa to Ms Gogsadze will not deprive Mr Evans' children access to both of their parents. As such, I am satisfied that refusing Ms Gogsadze's application will not disrupt their lives and that a refusal would be consistent with their best interests.”
HEARING
4. At the hearing of the application for review the Applicant was represented by Mr Terry Kolomyjec of Counsel and the Respondent by Mr Andrew Grimm of Blake Dawson Waldron Solicitors.
5. There was introduced into evidence the documents lodged on behalf of the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1 - T42. The following written material was tendered on behalf of the parties as exhibits and marked accordingly:
Exhibit
Description
Date
A
Statutory Declaration of Shaun Evans (& attachments A-E)
8 April 2003
B
Statutory Declaration of Maya Gogsadze Evans (& attachments A- F)
14 April 2003
C
Statutory Declaration of Lisa Marie Evans
14 November 2002
D
Statutory Declaration of Mrs Khutsurauli
14 March 2003
E
Clinical Report of Dr Griffiths
16 March 2003
F
Report of Dr Papadopoulos
11 July 2003
G
Statutory Declaration of A M Kroek
12 March 2003
H
Statutory Declaration of A M Kroek
4 February 2003
J
Statement of Daniel Shankey
15 November 2002
K
Statutory Declaration of Bernard Hodges
8 November 2002
L
Reference of Helen Scott
11 November 2002
M
Statement of Nana Devdariavi, original and translation
19 March 2003
N
Fax to Mrs Maya Gogsadze - Evans
26 August 2003
6. Oral evidence was given by the Applicant, the Visa Applicant by telephone from Georgia, Ms Lisa Marie Evans, and Mrs Iatamze Khutsurauli. The Applicant and the Visa Applicant were each cross-examined on their evidence, the other two were not.
THE ISSUES
7. The issues sought to be raised on behalf of the Applicant were stated as:
(1) Whether proper regard was given to relevant considerations in the determination that the principal Applicant [the Visa Applicant] is not of good character in relation to her past and present general conduct.
(2) Whether the determination that the principal Applicant's marital and domestic relationship with the Review Applicant [the Applicant] is not genuine and continuing was based on irrelevant considerations.
(3) Whether proper consideration was given to relevant considerations in the determination that the Review Applicant has no impediment to travel or settle in Georgia.
(4) Whether the determination, that the principal Applicant is at risk of recidivism and that her past and present general conduct is a threat to the security of the Australian community, was based on relevant considerations.
(5) Whether the decision-maker took due regard of legitimate interests of the Review Applicant and the legitimate expectations of his children in accordance with the Policy Direction of a Minister under section 499 of the Migration Act 1958 (“the Act”).
8. On behalf of the Respondent it was maintained that the issues were:
(1) Can the Visa Applicant satisfy the Tribunal that she passes the Character Test having regard to whether:
·she made false and misleading statements and submitted false documentation in connection with her prior visitor visa applications;
·she remained in Australia unlawfully from 3 January 2001 until 21 February 2002;
·she worked unlawfully in Australia during the above mentioned period;
(2) If the Visa Applicant does not pass the Character Test should the discretion be exercised in her favour having regard to:
·the expectations of the Australian community;
·the need for deterrent;
·the best interests of the Visa Applicant's and the Review Applicant's children;
·the hardship to the Review Applicant and the Visa Applicant
9. Basically, however, the issues as they arose for determination on the basis of the material tendered before the Tribunal were:
(1) does the Visa Applicant pass the Character Test under section 501(1) of the Act that is, is she by reason of past and present general conduct a person who is not of good character;
(2) if the Visa Applicant does not pass the Character Test :
(i) should the decision of the Minister's Delegate be affirmed by an exercise of the residual discretion under section 501(1) of the Act against the Visa Applicant ; or
(ii) should the decision of the Minister's Delegate be set aside by the exercise of a residual discretion in favour of the Visa Applicant.
CHRONOLOGY OF EVENTS
10. A chronology of facts and events not in issue between the parties is as follows:
1957 3 November the Visa Applicant was born
1958 29 October the Applicant was born
1984 18 February Applicant first marries
1987 14 March Visa Applicant marries David Tabidze
1988 17 March Visa Applicant's daughter was born
1997 6 October Visa Applicant's marriage to David Tabidze dissolved
1998 15 June Visa Applicant lodges visitor visa application for Australia
1998 23 June Visitor visa granted to Visa Applicant
1998 1 July Visa Applicant arrives in Australia
1998 24 September Visa Applicant granted long stay visitor visa in Australia for 6 months
1999 29 March Visa Applicant lodges application for protection visa as defacto spouse of the principal Applicant, Merab Maisuradze. Bridging Visa granted with no work condition
1999 29 April Protection visa refused
1999 26 MayApplication lodged for review with Refugee Review Tribunal
2000 13 September Refugee Review Tribunal affirmed refusal
2000 29 September Application lodged for appeal to the Federal Court of Australia Visa Applicant as second named Applicant
2000 17 October Applicant’s marriage dissolved
2000 6 December Judgement of Federal Court dismissing appeal
2001 2 January Appeal lodged to Full Court of Federal Court
2001 31 May Full Court of Federal Court dismisses appeal
2002 20 February Application lodged for Ministerial intervention
2002 21 February Visa Applicant granted Bridging Visa with no work condition
2002 7 March Visa Applicant granted further Bridging Visa with no work condition
2002 26 March Visa Applicant and Applicant marry
2002 7 June Visa Applicant applies for a Spouse Visa
2002 9 June Visa Applicant departed Australia
2002 14 August Visa Applicant interviewed in Moscow
2002 20 December Visa Applicant Spouse Visa application refused
RELEVANT LEGISLATION AND DIRECTION
11. Section 234(1) of the Act provides:
"234 False Papers etc.
(1) A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both."
12. The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.
13. By section 501(1) of the Act the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.
"501 Refusal or cancellation of visa on character grounds
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…"
14. The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 324 it was said:
"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard of integrity but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry."
15. As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs. [AATA 9295, 8 February 1994)
16. A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.
17. 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:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or
children and the person under consideration, the best interests of the child or children.
Protection of 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:
…
(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
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;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"
OTHER PERTINENT FACTS
18. Prior to travelling to Australia in June 1998, the Visa Applicant had been living in Georgia with her daughter and Mr Merab Maisuradze. She had resided with her first husband Mr David Tabidze, for a period of about two years, the marriage being dissolved in October 1997.
19. The Visa Applicant worked in Georgia as a physicist having graduated with a diploma from the Tbilisi State University. Prior to her arrival in Australia, she had completed a two-year intensive English language learning course at the Tbilisi State Institute of Western Languages and Cultures.
20. Mr Merab Maisuradze had in the early 1990’s been injured by gunfire and experienced consequential incapacity. He and the Visa Applicant had been living in a de-facto relationship for some time prior to their both travelling to Australia.
21. In her application of 5 June 1998 for a visitor's visa for Australia, it was stated that the Visa Applicant’s reason for wanting to visit Australia was tourism and to attend the "soccer tournament Kanga Cup". It was also stated that her then current occupation was "businessman" and her employer "Harmony Salon of Beauty" in Tbilisi, Georgia, where she had worked since 1996. She had, it was said, been granted one-month leave. The daughter was not included in this application.
22. In the course of her interview with an officer of the Respondent, in Moscow on 14 August 2002, she was asked questions referable to her leaving Georgia and she gave answers. The record of the interview recites with reference to her applying for a visa (T31, pp198,200,201):
“Q - For what purpose?
A - Me and husband wanted to escape from Georgia as we were refugees and the Georgia [Government] was after us.
Q - What were your intentions when you applied?
A - Not me personally, who organised it. We had to escape and we were in a [group].
Q - Please answer the question about your intention?
A - Not important where we go, just wanted to get out of Georgia
Q - What was your intention?
A - Wanted to get out and leave with [husband] as my [husband] was in danger. We were not even thinking of being tourists. We were told that a lady was organising for a group of people to go to [Australia] and we were lucky to be in this [group].
Q - Who was this lady?
A - First name Gogona, I do not know last name - Georgian national.
…
Q - How much money did you pay her?
A - USD 5,000 for the two of us.
Q – [Husband] name?
A - Merab Maisuradze 25/12/1955.
Q - When marry?
A - My de-facto husband - not married.
Q - Period of [relationship]?
A - 1992 until 2000.
Q - Both of you applied for [visas] at [Australian] Embassy in Moscow?
A - Yes.
Q - What did Gogona do for you?
A - She gave us instructions as to what documents were required and we provided her these documents.
Q - What tell you to provide?
A - References about our registration, employment and something else but I can't remember.
Q - Where get these documents:
A - In Tbilisi, we went to different offices. The documents were not real. For example I was divorced at this time and when I told Gogona, she said there was no way I could get a visa if I am divorced and she said I had to write that I was married and gave me instructions on what to write.
Q - Any other incorrect information?
A - Yes, that I owned a beauty salon.
Q - Did you ever own a beauty salon?
A - No I was an assistant on TV for a movie director and before that I worked at a research institute as a physicist.
Q - So you provided incorrect information and documentation on employment?
A - Yes, she fabricated these documents and that is why they want to arrest her.”
23. More particularly the Visa Applicant says in her statutory declaration sworn for the purpose of these proceedings (Exhibit B):
“4. Sometime in 1992 a coup d'etat took place in Georgia, my then de facto partner Merab Maisuradze, who was a radical political activist, was wounded as a result of the continuing violence arising from the unstable political climate in Georgia.
5. The political violence continued in Georgia and to avoid the growing persecution, my de facto partner and I decided to flee Georgia. We sought the assistance of an agent named Gogona, who represented herself as an agent who can assist applicants to go to Australia. Shi [sic] attended to the preparation, arrangement of all documents and lodgement of our visa applications. Gogona represented herself as knowledgeable of the Australian migration requirements.
6. Gogona was aware of all my circumstances, that I was married and divorced from my husband, David Tabidze, and that Merab Maisuradze was my de facto partner and that we were fleeing Georgia as a result of the political persecution against my de facto partner. Instead Gogona created a series of false information about me. I acknowledge that I have breached Australia's migration laws because I failed to whether what she was doing for me will not result in me breaking any laws. When she assured me that she "will take care and prepare on my behalf all the necessary documents " I did not question her nor I did enquire as to how she is going to go about it.
7. I have no intention of providing false and misleading information in my application for visitor's visa but due to my stupidity and naivety, I had accepted Gogona's representation without question because at the time my application was lodged I did not know much about Australian migration law and was not familiar with the Australian migration law requirements.”
24. In her oral evidence before the Tribunal the Visa Applicant said that all she and her de facto husband wanted was to get out of Georgia. She did not herself insert any of the information in the visa application form and the signature appearing on it was and is not her own. She says that the information contained in the application was made up by the travel agent, Gogona and that she accepted what she was told without question. In fact, she did not know of the matters set forth in the application form until it was shown to her during the Refugee Review Tribunal hearing. She says that she told the agent everything about herself and was then informed by the agent that all necessary documents would be prepared for her in aid of obtaining the visa. The principal intention of she and her de facto was, as she stated in her oral evidence, to "flee Georgia, it did not matter where we went, USA, South Africa, or Australia, we wanted to leave as soon as possible, it did not matter which country we went to".
25. The Respondent, by its representative, did not take issue with the Visa Applicant as to the accuracy of her evidence referable to her application and the information in the form. It was not put to her that her evidence, as to the falsity of the signature on the application form and the contents of the form, was or were incorrect. It is noted that Mrs Khutsurauli who came to Australia in the same group as the Visa Applicant also stated, in her evidence, that she did not sign her application form. There is not any reason why the Tribunal should not accept the evidence of the Visa Applicant referable to the 1998 application. The application form was not hers, she did not insert particulars in it and she did not sign it.
26. The Visa Applicant and her then de facto husband resided together in Australia up until his departure. During this period he experienced ill health and erratic behaviour to such an extent that the safety of the Visa Applicant was put at risk. He spent time at Concord hospital and experienced periods of epileptic fits.
27. Nearly three years after her arrival in Australia, the Visa Applicant and the Applicant met one another, this in April 2001. They were both then divorced people, the Visa Applicant's de facto husband having returned to Georgia. The Applicant was working as a retail butcher and living at Salamander Bay in NSW. In February 2002, they began living together and married on 26 March 2002. The Visa Applicant left Australia in June 2002, returning to Georgia. The Applicant and the Visa Applicant have maintained regular contact by telephone and letters since that time. There is evidence of stress being experienced particularly by the Applicant consequent upon the separation.
28. On the basis of the evidence tendered before the Tribunal, including that of friends, the Tribunal is satisfied that the relationship between the Applicant and Visa Applicant is genuine, sincere and intended to be long lasting.
AS TO THE ILLEGAL PERIOD OF RESIDENCE IN AUSTRALIA
29. The Visa Applicant resided in Australia without a visa, and beyond the periods during which proceedings in the Refugee Review Tribunal and the Federal Court were current, that is from 31 May 2001 up until she was granted a Bridging Visa in February 2002. Subject to the one-month period of grace, she was thus in Australia illegally from the end of June 2001 to February 2002.
30. The Visa Applicant says that for most of her time in Australia she was seeking permission to remain, by way of her application for a Protection Visa appeal to the Refugee Review Tribunal, appeal to the Federal Court and seeking Ministerial intervention. Indeed, in her application for a Bridging Visa (subclass 050) of 20 February 2002, she gave as a reason for not departing Australia earlier the fact that she had "lodged an appeal with Federal Court" and that she had made a "Ministerial appeal waiting decision". In her further application on 6 March 2002, she repeated the same explanation.
31. When asked at her Moscow interview about staying in Australia, she stated as the record shows (T32, pp 220,222):
“Q - Concerned staying in Australia without visa?
A - No, I stayed because case was at review. I never stayed illegally in Australia and I was self- employed, I was not working.
Q - So you are saying you had a valid visa the whole time in Australia?
A - Yes, never stayed illegally.
Q - Difficult to understand how support yourself?
A - Always tried to find job from newspapers. I had a lot newspapers, I bought them every Saturday.
Q - Did you support daughter financially?
A - Yes, offcourse I did.”
32. More particularly the Visa Applicant says in this regard (Exhibit B):
"Because of the appeal I had lodged on my behalf before the Federal Court after my de facto partner's appeal was dismissed in December 2000 (see annexure “B”) and the subsequent Ministerial appeal lodged in July 2001 before the Minister and determined on 17 December 2001 and my reliance on the assistance of my agent I continued to hold the mistaken belief that I was lawfully remaining in Australia until I was made aware that my ministerial appeal was actually determined on 17th December 2001".
33. The Respondent, consequent upon the dismissal of the appeal by the Full Federal Court on 31 May 2001, was well aware of the Visa Applicant being in Australia without a valid visa. It was as a consequence of advice received by her from her solicitor that she did apply for a Bridging Visa prior to her departure from Australia in 2002. The Tribunal accepts that the Visa Applicant was not aware during the relevant seven and a half month period that she was in Australia illegally and accepts that she believed at the time that the application to the Minister was still current.
AS TO THE VISA APPLICANT WORKING IN AUSTRALIA
34. In the course of her interview with the Respondent's officer in Moscow, the Visa Applicant spoke of the deterioration of her relationship with her de facto husband and of the decline in his state of health. As noted in the record of that interview, the Visa Applicant was asked questions and answered accordingly (T31, p203 – 207):
“Q - Two of you travelled to [Australia] and remained living together until 2000?
A - Yes.
Q - What happened when went to [Australia]?
A - My [husband] had very serious health problems as he was injured in 1994 in Georgia whilst he was working. He got shot in the building of the TV company [because] of the war.
…
Q - What happened after arrive in Australia?
A – [Husband] did not work and he had mental problems.
Q - Please explain to me the sequence of events that led to your remaining in [Australia] for an extended period?
A - After 3 months we extend out stay for another 6 months but also applied for [protection visa].
…
Q - When apply for [protection visa]?
A - Don't remember exactly.
Q - Apply together?
A - Yes. He was main applicant and I was wife.
Q - Why help end?
A - He was very hard. On 4/8/00 he had epilepsy. He had some mental problems but he was taking tablets and they helped but we did not find tablets in Australia. His mental state became worse. There was an accident and the doctor told me could no longer drive. I loved him very much but realised it was quite dangerous for me to stay with me as he did no longer control himself. He became violent. I asked him to leave. Doctor said it was becoming dangerous and I could no longer be with him.
Q - When ask him to leave?
A - December 2000.
Q - Where is he now?
A - In Germany. He returned to Georgia first.
…
Q - Why did you stay in [Australia]?
A - I wanted to have a normal life and did not want to live in fear and stress.
Q - But you did not have any refugee claims of your own. I suggest that you wanted to stay because you prefer the life there.
A - No. I did not see a future for myself in Georgia. The situation in Georgia was bad. I was planning to go home when [husband] left but then met my current husband and decided to stay.
Q - So you met current husband soon after 25/12/00?
A - Yes, 4/10/01.
…"
35. The Visa Applicant said that she worked in Australia in order to assist in caring for her de facto husband. When asked about her working at the above mentioned interview the Visa Applicant said (T31, pp218 – 220):
“Q - Worked in [Australia]?
A - No, sometimes worked as cleaner. Cleaning houses for rich people. Reading newspapers and answered advertisement.
Q - How long work for?
A - Not for long time. Temporarily. Not when 1st arrived.
Q - When did you start?
A - …It was in 1998. Self employed.
Q - From 1998 to when did you work?
A From 1998 to when married.
Q - So, from soon after arrived?
A - No, six months after arrived.
Q - When, please?
A - From 1998.
Q - How much earn?
A - Different $50 or $60.
…
Q - So you are saying you supported yourself through work?
A - Yes.
Q- Concerned stayed in [Australia] [without] visa?
A - No, I stayed because case was at review. I never stayed illegally in [Australia] and I was self-employed, I was not working.
Q - So, you are saying you had a valid visa the whole time in [Australia]?
A - Yes, never stayed illegally.
…"
More particularly in her statutory declaration the Visa Applicant stated (Exhibit B):
“9. When I arrived in Australia, my de facto partner's health conditions turned for the worst and in the unfamiliar surroundings that we were in and not knowing the laws and regulation of the country, we were not able to lodge our refugee application until after 45 day period. Our migration agent advised us that as a result of our application for refugee being lodged beyond the 45 day period, we are no longer entitled for permission to work.
10. I acknowledged that I have unlawfully worked in Australia while waiting for the determination of our refugee application. My de facto partner and I had to scrimp for food, clothing, daily necessities and rent money and daily medication for my sick partner. My de facto partner's physical and mental health was fast deteriorating. I was taking care of my sick partner who was wholly dependent on me financially and emotionally and he was becoming dangerous to live with because of his deteriorating mental condition. I knew I worked even if I was not granted permission to work but I request your compassion because I worked only in order to survive and to support my sick partner."
36. During the course of her oral evidence before the Tribunal, the Visa Applicant confirmed the matters detailed in her Statutory Declaration and spoke of her need to buy medication for her de facto husband and the deterioration in his health, as a consequence of the injuries sustained in 1994. She spoke of his being sick and aggressive, spending time in Concord hospital and experiencing epileptic fits. In fact, her husband returned to Georgia on 25 September 2000. She did obtain some cleaning work after he left, not every day, but stopped when she met the Applicant in April 2001.
37. She says that she had no intention of breaching the immigration legislation and is "deeply sorry" for having done so. She said that she is a professional person, a teacher, a physicist and an intelligent lady and would not knowingly act in contravention of legislation. She realises that such conduct would be unacceptable to the Australian people. She respects her husband, the Applicant who she says is a hard working person and says she would not do anything that would impinge upon his standing in the community.
38. The Tribunal is mindful of the circumstances in which the Visa Applicant did obtain casual cleaning work in Australia. There was a need for her to obtain funds to support her de facto husband in the medical situation in which he found himself. The Tribunal does not consider the fact that the Visa Applicant worked illegally in Australia, so far as it was a breach of legislation, to be of a serious nature.
CURRENT GOOD CHARACTER OF THE APPLICANT
39. Following their marriage in March 2002 and for a period of time before that event the Applicant and the Visa Applicant lived together at Salamander Bay. The Visa Applicant integrated into the local and Georgian communities and was and is highly respected in and by such communities. The Visa Applicant says that she has met and made many friends in Australia and has used her skills to be of assistance to them. She is an accomplished pianist and played a part in assisting her husband's children with their school work. She says that if given a chance "with both her working skills and strong sense of personal responsibility to the community" that she and the Applicant would be able to build a stable financial future for themselves and the children.
40. In a testimonial addressed to the Tribunal, on a letterhead of the Public Defender of Georgia, the writer speaks of the moral stature of the Visa Applicant, she being distinguished by her "modesty, cordiality and erudition". She is said to be "a worthy person". Her employer at the Real Estate Agency where she was recently working says that he has known the Visa Applicant for more than 20 years and that “she is a diligent, highly disciplined person with the deep sense of a responsibility. She timely and properly performs her duties, being modest and attentive to others. Maya knows computer, Russian and English languages." (Exhibit B)
41. There were three principle grounds on which the Respondent maintained that the Visa Applicant was not of a good character. These were the 1998 application, she remaining in Australia without a valid visa and engaging in “employment”.. The Tribunal has earlier indicated its finding in relation to the 1998 visa application. It was not her application and any inaccuracies or falsities appearing in it do not appear as a result of any intent to mislead on the part of the Visa Applicant. She did remain in Australia for a relatively short period of time without a visa or valid cause, but in the circumstances earlier indicated. As for her working, it was of a limited nature not in employment and rendered necessary by the state of health of the Visa Applicant 's then de facto husband.
42. The Tribunal is satisfied on the basis of the evidence before it that the Visa Applicant has evidenced recent good conduct and that the matters said to be adverse to her in this regard have not been sustained.
PHYSICAL AND MEDICAL CONDITION OF THE APPLICANT
43. The Tribunal has before it, evidence from Dr Rosalyn Griffiths, Consultant Clinical Psychologist and Dr Jim Papadopoulous, a General Practitioner. In her report of 16 March 2003, Dr Griffiths having narrated the family and clinical history as given to her noted inter alia (Exhibit E):
"In the last twelve months since they have been separated he [the Applicant] had lost a significant amount of weight and missed his wife a great deal and has felt unhappy and depressed without her here.”
44. As to the effect of the Visa Applicant's presence in the Applicant's family structure Dr Griffiths stated (Exhibit E):
"In summary, since his marriage Mr Evans general well being has improved by the presence of his wife and communication with his stepdaughter, Sophio. The presence of his wife and stepchild would enhance his sense of purpose which he has not had since the breakdown of his previous marriage. His three children appear to have accepted his new life and relationship with his new wife and some bonding has occurred with their stepmother. I believe it would be in the interests of all concerned if the family of four children were together with their two parents. The continued separation of Mrs Gogsadze and Sophio from Mr Evans and his daughters would I believe perpetuate emotional instability and discount any opportunity of the positive benefits of a two-parent family."
45. Dr Griffiths further noted that the Applicant:
"[h]as neglected his health since his wife left… separation has had a particular impact on his emotional state at times of family reunions… when he was particularly emotional and depressed in mood."
Dr Griffiths in summary stated that she believed:
"Mr Evans emotional state will deteriorate if his wife is prevented from being in Australia with him. He is committed to being with his wife as this was his expectation when they were married."
Dr Griffiths concluded her report by saying:
"From my assessment I believe the ongoing separation will continue to impact on his emotional state and I believe that the matter should be rectified as soon as possible to eliminate any further deterioration in his emotional or physical health. I also believe that the ongoing separation does not benefit the children. If Mr Evans was reunited with his wife the children could begin to function within a two-parent family. Therefore, in my opinion it would be desirable if his wife was living with him in Australia as soon as possible so that they can resume a normal partnership together with their respective families."
46. The Respondent did not require Dr Griffiths to be present for cross-examination on her report. The Tribunal is entitled to and does accept the evidence of Dr Griffiths. It was not at issue between the parties.
47. The General Practitioner, Dr Papadopoulos having the Applicant as a patient said that (Exhibit F):
"he is having serious medical ramifications as a direct result of the difficulty he is having with the Immigration Department. He is suffering from significant depression and anxiety with reduced sleep and concentration and a real sense of hopelessness. I fear that if this situation continues he will develop depression which will need intensive treatment with medication and prolonged counselling sessions. It is of utmost importance that this situation is resolved promptly."
48. As with Dr Griffith’s so with Dr Papadopoulos, the Respondent did not require the doctor to be present at the hearing for cross-examination. The Respondent does not put at issue the medical evidence.
49. The Applicant himself says that the refusal by the Respondent to grant his wife a visa enabling her to come and live with him in Australia "has devastated me" (Exhibit A). Further he says that the continuing and uncertain separation from his wife is causing him "indescribable loneliness and despair. Having been abandoned and left by my first wife I feel I have been dealt badly at a time when I am just beginning to find the joy and fulfilment as has evaded me for so long in my life. My wife Maya has given me a renewed sense of hope and anticipation in my life". He further says that the separation has caused him much physical pain, personal anguish, emotional distress and financial hardship all leading to his losing seven kilograms in weight.
50. In the event of a visa not being granted to the visa Applicant the Applicant says that it would not be realistic for him to contemplate relocating to Georgia (Exhibit A):
"I contemplate selling my home to be with my wife Maya, but how about my (3) three children, I love my children and it would break my heart to be away from them. I think of my elderly 80-year-old mother, in the twilight of her years, she wants to see me living in Australia and be there for her when she calls. The thought of going to a foreign country where I do not have friends and which language I can not speak or comprehend make me so uncert [sic] ain of the future. I am 44 years old and do not know what job I can do in Georgia to support my wife and (3) daughters in Australia."
51. The Visa Applicant recognises the pain that the separation is causing the Applicant. She recognises that he has gone through a personally difficult time and that the separation has had an adverse effect upon his children. She acknowledges that the Applicant's life "has been torn apart, his children has no place to go to visit him and his personal and financial life in great disarray. He has no family life to go home to at night and I am aware that he has became very thin and I am worried for his general well being" (Exhibit B).
52. It is clearly apparent on the evidence that the Applicant's present poor state of health has been significantly contributed to by the separation and the refusal of the Respondent to grant the Visa Applicant a visa. The Tribunal is satisfied that, in the event of the decision under review being affirmed, significant hardship, both physical and emotional, will be caused to the Applicant.
WELFARE OF THE CHILDREN
53. The Visa Applicant has had the sole custody and care of her daughter Sophio Tabidze since her birth. The Visa Applicant’s mother was guardian of the child whilst the Visa Applicant was in Australia. Sophio is presently residing with the Visa Applicant in Georgia. Neither her father or grandmother have any objection to her travelling to and living with her mother, the Visa Applicant, in Australia.
54. The Applicant has three children of his previous marriage. He says that when the Visa Applicant moved in to live with him, she took it upon herself to give the three daughters piano lessons, help them with their homework, especially mathematics, organise birthday parties and talk to them "like a true mother to a daughter and my daughters had taken to her like loving daughters would to a mother." (Exhibit A)
55. The Visa Applicant has also developed "a good, pleasant and harmonious relationship" with the Applicant's first wife and her present husband (Exhibit A).
SUBMISSIONS AND DECISION
AS TO CHARACTER
56. The Respondent maintains that the Visa Applicant does not pass the Character Test, this based on her past and present conduct. It is said that she provided false and misleading information to the Respondent in connection with her visitor visa application. It is said that material contained in the application was not correct with reference to her marital status, her employment and her reason for visiting Australia. It is further said that she provided fraudulent documentation to the Respondent and failed to disclose her then de facto relationship. She remained unlawfully in Australia and worked illegally.
57. It is further said that this conduct of the Visa Applicant brought her into conflict with the Ministerial Direction, particularly paragraph 1.9 as well as section 243 of the Act. Her failure, it is said, to observe the truth in her dealings with the Respondent revealed a blatant disregard for Australian migration laws and hence demonstrates her bad character.. It is said she would not be truthful in obeying the law in the future.
58. On behalf of the Applicant, it is accepted that she did remain in Australia without authorisation and she did work without permission. She has evidenced, it is said, remorse for breaches of migration law but says that so far as information set forth in her visa application is concerned, she relied upon the expertise of a local agent in the preparation of her application. The Tribunal has earlier indicated and has found that the application was not that of the Applicant. She did not insert the material contained in it and she did not sign it.
59. With reference to working in the country without consent it is submitted that the circumstances whereby her de facto husband was not well, on account of the injury sustained by him in Georgia, whilst not justifying her acting in breach of the visa, does provide an explanation which should be accepted. The Tribunal has indicated that it does so accept the explanation put forward. It is true that she remained in Australia for a period of some seven and half months, beyond the period of time for which she could lawfully remain, but again her explanation is one accepted by the Tribunal.
60. There is not any evidence adverse to the character of the Visa Applicant other than for the matters earlier discussed. Indeed the evidence before the Tribunal as to her recent good conduct is persuasive.
61. The Tribunal is satisfied on the basis of the evidence before it that a finding should not be made adverse to the Visa Applicant within the meaning of section 501 of the Act. The Tribunal does not find the Visa Applicant to be not of good character.
AS TO DISCRETION
62. Although the Tribunal is satisfied as to the Character Test, it is appropriate that it makes mention of the discretionary matters that were argued on behalf of the parties.
63. On behalf of the Respondent, it is said that the breaches by the Visa Applicant of Australian migration law were serious and that there is a risk of her showing disregard for other laws in Australia. She has, it is said, shown contempt for such laws. The Tribunal does not see the conduct of the Visa Applicant as being serious in the context of this Ministerial Direction. It is true that the community is entitled to be protected and indeed, if a different finding had been made, it may well be that this consideration would have weighed against the Visa Applicant. However this was not so. The Visa Applicant did not herself present or herself cause to be presented false or forged documents and did not make false or misleading statements in connection with her entry or stay in Australia. Statements were incorrect, but the evidence before the Tribunal does not show those statements as having been made by the Visa Applicant. Incidentally these statements, even if they had been shown to be those of the Visa Applicant, would not have been made in aid of her entry into or stay in Australia but more in aid of her being able to leave Georgia. Her evidence is to the effect that she was not certain as to the country to which she would to prefer to go.
64. The other primary considerations, if a discretion was to be exercised, relate to a risk of recidivism, general deterrence and expectations of the Australian community. The Visa Applicant did not disregard Australian laws or breach immigration law, and hence the risk of recidivism does not arise. Likewise the issue of general deterrence does not arise other than it being noted that prospective Visa Applicants would be well advised to ensure that they have control over the documentation as prepared in aid of their obtaining a visa. This, however, may be more a matter for the Respondent and its officers than for a delegate making a decision or the Tribunal on review. There was no conduct of the Visa Applicant, which could be said to be not acceptable to the Australian community other than the unlawful remaining in Australia and the work activities. However, the Tribunal is satisfied that the community if informed would not expect a person such as the Visa Applicant to be unduly prejudiced by such conduct.
65. The interests of the children who are relevant to this application have earlier been discussed and the effect upon them, in particular the Applicant's three children, of the Visa Applicant not coming to Australia would be as already mentioned.
66. Of measurable significance in the exercise of the discretion would be the state of the physical and emotional health of the Applicant. There is no issue as to the marriage being genuine. Hardship would be experienced by the Applicant such hardship impacting upon him and upon those associated with him. If the Visa Applicant should be able to resume married life with the Applicant, the Tribunal is satisfied she would make a worthwhile contribution not only to the welfare of her husband but to the Australian community, including it’s Georgian community.
67. For the reasons herein before set forth, the Tribunal is satisfied that even if it had found the Visa Applicant to be not of good character, and it has not so found, it would have exercised it’s discretion in favour of her. This, on account of the weight that would placed on the primary and other considerations, earlier discussed.
68. As already indicated the Tribunal is satisfied that the Applicant is not disqualified by reason of the provision by section 501 of the Act. Accordingly the decision under review is set aside with a finding that the Applicant satisfies the Character Test under section 501 of the Act. The application is referred back to the Respondent for further consideration, with a direction that the application is not to be refused on the ground that the Visa Applicant does not satisfy the Character Test.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: A. Krilis
AssociateDate of Hearing 27 August 2003
Date of Decision 12 September 2003
Counsel for the Applicant Mr Terry Kolomyjec
Solicitor for the Applicant Ms Virginia Odtojan
Solicitor for the Respondent Mr Andrew Grimm
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