Fox and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 195

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 195

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/605

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL FOX

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon CR Wright QC (Deputy President)

Date27 February 2004  

PlaceBrisbane

Decision It is directed that the visa applicant’s spouse visa application be assessed on the basis that she does not fail the character list specified in Section 501 of the Migration Act 1958.

….(Sgd)The Hon CR Wright QC….

Deputy President

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/605

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PAUL FOX

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

CORRIEGENDUM [2004] AATA 195

Tribunal The Hon CR Wright QC (Deputy President)

Date8 March 2004  

PlaceBrisbane

The Tribunal amends its Decision dated 27 February 2004 to read as follows:

(a)Cover page and also para 21 of the decision, the word “list” should read “test”;     and

(b)      Para 21, page 6, “consequentially” should read “consequently”.

(Sgd) The Hon CR Wright QC….

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visas – spouse visa application – whether visa applicant of “good character”

Migration Act 1958 ss 417, 501

REASONS FOR DECISION

27 February 2004 The Hon CR Wright QC

1.      The visa applicant, DANG Thi Hanh, born 16 June 1961, is a Vietnamese citizen.  She married Paul Fox, the review applicant an Australian citizen, at Durack in Queensland on 10 February 2001.  During earlier proceedings some doubt was thrown on the genuineness of this marriage but the evidence I have heard and seen convinces me it is a completely genuine relationship.  This was properly conceded by Mr Steele, counsel for the respondent during the review hearing before me in Brisbane on 18 November 2003.

2.      The visa applicant first entered Australia on a Subclass 663 Visitor visa on 29 February 1992..  The visa was valid for a period of 6 months.  Thereafter the visa applicant remained in Australia unlawfully.  She lived with and spent her time giving domestic assistance to her sister who lives in Australia with her husband and children.

3.      The visa applicant wished to live in Australia permanently and in 1997 she engaged the services of a woman, Mrs Trinh, who said that she could help.  There is no evidence that Mrs Trinh was a registered migration agent, or held any qualifications which would have enabled her to provide the visa applicant with competent assistance or advice.

4.      In this jurisdiction one often hears an applicant blame his or her failings on mistakes in preparing migration documents upon the supposed ignorance or duplicity of corrupt or bogus migration agents.   More often than not such claims can be discounted or refuted by other material which proves or suggests that the applicant was complicit in the agent’s conduct or that the agent is simply a figment of a desperate imagination.  In this case I entertain no such misgivings on the basis of the evidence I heard from the visa applicant and her husband.  I am satisfied that Mrs Trinh existed and was instrumental in steering the visa applicant into a sea of problems.

5.      The visa applicant was poorly educated and still has problems conversing in English with her husband despite several years of premarital cohabitation and constant communication with him since her return to Vietnam pending resolution of her spouse visa application which was lodged on 14 September 2001.

6.      With the assistance and guidance of Mrs Trinh the visa applicant lodged an application for a protection visa on 30 September 1997.  The application did not disclose that Mrs Trinh had provided assistance to the applicant and I am satisfied that the nature and content of the application was not explained by Mrs Trinh to the visa applicant who believed that she was simply applying to extend her right to remain in Australia by means which were not unlawful.

7.      The applicant clearly had no grounds for the protection application and I am satisfied that she was quite unaware of the claims made in the application that she had been mistreated by the Vietnamese authorities before coming to Australia.

8.      Her application for protection failed at departmental level and an application for review was lodged with the Refugee Review Tribunal (the “RRT”).  This application was prepared with the assistance of her future husband, the review applicant, which might suggest that she was, by then, aware of what was going on.  I have given this question some thought but I think the communication problem which I have mentioned above was probably even more acute then than it is now and I have no reason to believe that either applicant was engaged upon a course intended to deceive or simply to prolong her stay in this country with a plainly unmeritorious case.

9.      At the RRT hearing the visa applicant conceded, quite freely it appears, that the tale of trouble with Vietnamese authorities set out in her protection visa application was not correct and had been incorrectly filled out.  She said she did not know who had written that material in the document.  I suspect this may be untrue but it is entirely feasible that Mrs Trinh or indeed someone else wrote the fabricated story after the visa applicant had signed the application.  I entertain some doubt that this answer by the visa applicant to the RRT was a deliberate attempt to mislead and therefore I would not be prepared to hold this matter against her on the character assessment issue which is now before me.

10.     On 23 December 1999 the RRT affirmed the departmental decision not to grant a protection visa to the visa applicant.  The review applicant said that the RRT decision was sent to the wrong address.  The visa applicant was living with the review applicant in a defacto relationship at this time.  Again it may be observed that the “wrong address” excuse is one commonly encountered in all types of administrative or litigious disputes.  Sometimes it is a lie designed to excuse failure to act.  Nothing in the present case causes me to believe that such an explanation applies here.  I think both applicants were anxious to proceed and that the RRT decision was in fact sent to an address at which the visa applicant was not living.

11. After finally receiving notice of the RRT decision the review applicant wrote to the Minister seeking ministerial intervention under section 417 of the Migration Act 1958..  On 22 March 2001 ministerial intervention was declined and, on 26 may 2001, the visa applicant returned to Vietnam.

12. Her application for a spouse visa was refused by the Minister’s delegate on 31 May 2003 on the basis of her inability to establish her good character under section 501 of the Migration Act 1958. 

13.     An application to review was lodged with the AAT on 15 July 2003.  At the hearing in Brisbane on 18 November 2003 the visa applicant was represented by her husband, the review applicant.  The respondent was represented by Mr Mark Steele.  Evidence was taken from the visa applicant under affirmation by telephone from Vietnam with the assistance of an interpreter.  The review applicant gave sworn evidence.  Both witnesses were cross-examined by Mr Steele and were also questioned by me.  The review applicant produced a number of photos and letters which I read.  These were not formally taken into evidence.  The Section 37 Documents (433 pages) were referred to as necessary.

14.     In his address Mr Steele raised a number of issues for my consideration as to the evidence and the veracity or otherwise of the applicants.  I have dealt with most of these issues in the foregoing narrative.  On the whole I found both applicants to be credible witnesses.

15.     Mr Steele also made the point that the applicants had been vexatious in pursuing a protection application which had no chance of success. However it was not claimed that the visa applicant had lied to the RRT.

16.     The review applicant freely conceded that to assist the visa applicant to stay with him in Australia he had sought to use all means lawfully available to him.  I think therefore that some observations should be made about this.  There is I think a distinction to be made between (a) an applicant who seeks to exhaust all avenues lawfully open to him or her with a view to ultimately securing a beneficial decision even if the prospects, objectively assessed, may be poor or even hopeless, and (b) an applicant who has concocted a false case for protection and, having failed at primary level, then seeks to gain more time residing in Australia by implementing further appeals knowing they can only succeed if the false case is accepted.  In the former case I think there should be no adverse character implications.  In the latter, there are obvious issues suggesting absence of good character.

17.     In considering which category the present visa applicant falls into it is significant to me that upon appearing before the RRT the visa applicant immediately conceded the untruthfulness of the main grounds in her application for protection – hardly the course one would expect from a person complicit in the bogus allegations.  I am not persuaded that the visa applicant acted improperly in this matter.  I realise that normally a person is responsible for what is contained in a document bearing his or her signature but here I am concerned with character rather than gullibility and, having heard the visa applicant’s explanation I am prepared to accept it.

18.     The respondent is on stronger ground in pointing to the fact that the visa applicant overstayed her visa on two occasions.  First when she overstayed her original visitor visa in 1992 by a period of 5 years and second, when she overstayed her bridging visa following the RRT decision by a period of about 12 months.

19.     I have already dealt with the second of these issues in para 10 et-seq, above.  In any event this was not strongly pressed by Mr Steele.  As to the initial overstaying period of 5 years, I accept that the visa applicant knew that she should have left Australia when her six-month visa expired.  She said no one came to tell her she must leave but I think that that is a rather lame and disingenuous excuse.

20. I have considered the Ministerial Direction No 21 issued under section 499 of the Act and in particular paragraph 1.9 thereof. Whilst the visa applicant overstayed her visitor visa by a substantial period of time it is significant to me that she took steps of her own volition to legitimise her residency in this country by engaging the services of Mrs Trinh. That her plans went so badly awry is predominantly due to that lady’s incompetence and deceit. In all the circumstances I do not regard the overstay as a sufficient basis for making an adverse character assessment under section 501.

21. Consequentially the application to review succeeds, and I direct that the visa applicant’s spouse visa application be assessed on the basis that she does not fail the character list specified in section 501.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon CR Wright QC (Deputy President)

Signed:         K Donnelly

Associate

Date/s of Hearing  18 November 2003        
Date of Decision  27 February 2004

The Applicant appeared in person  
Solicitor for the Respondent     Mr M Steele, Blake Dawson Waldron Lawyers