Gadea and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 564

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 564

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/166

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PILAR GADEA

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date28 May 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

[Sgd S P Estcourt QC]

Deputy President  

CATCHWORDS

Immigration – class 300 visa – provisional temporary – whether of good character – false and misleading statements – earlier non-genuine marriage – decision affirmed

Migration Act 1958 (Cth) s501

Chau and Minister For Immigration and Multicultural Affairs [2001] AATA 485

REASONS FOR DECISION

28 May 2004 Mr S P Estcourt QC., (Deputy President)

1.      In this application the Tribunal finds against Mr Magallenes’ application for a visa to come to Australia based on his genuine relationship with Ms Gadea, an Australian Citizen who he intends to marry.

2.      The reason for the Tribunal’s decision in favour of the Minister is that Mr Magallenes has failed to satisfy the Tribunal that he is of good character for migration purposes and there are insufficient grounds to justify the exercise of the Tribunal’s discretion to nonetheless grant the visa.

3.      Mr Magallenes who is a 33 year old citizen of Uruguay first came to Australia on 5 September 1999 on a short stay tourist visa later extended to expire on 25 August 2000.

4.      Mr Magallenes originally intending only a short stay in Australia to visit his sister left his 13 year old daughter Dayana, then aged 9, in Uruguay in the care of his sister.  He is the primary carer of Dayana who he has raised as a sole parent and who he said in evidence to the Tribunal is the “apple of his eye”.

5.      Five days before Mr Magallenes was due to return to Uruguay he married Helia Magallenes a sole parent and mother of five children.   He had met and commenced a relationship with her about four weeks after his arrival in Australia.

6.      Whilst Mr Magallenes had genuine feelings for his wife it is common ground that after they were married she refused to let him go out of their house at 7 Rupertswood Rise, Narre Warren South, expecting him to stay at home and care for her children while she went out to work at her newly acquired employment.

7.      It seems clear from the evidence of Mr Magallenes and his friend Andres Hernandez that from the point of view of Helia Magallenes the marriage was not a genuine one although Mr Magallenes had genuine feelings for her.

8.      The marriage only lasted about a month and Mr Magallenes was left feeling hurt and confused as a result.

9.      In September 2000 Mr Magallenes met Ms Gadea and shortly afterwards a relationship commenced, although the couple lived separately, Ms Gadea with her parents and Mr Magallenes with his sister, to whose home at 6 North Street Ardeer he had returned after separating from his wife.

10.     After separating from his wife and leaving her home, Mr Magallenes failed to notify the respondent of his new address and in fact on 22 January 2001 and 7 March 2001 he completed departmental forms in connection with his then current visa application falsely stating that he continued to reside at 7 Rupertswood Rise.

11.     When later interviewed by Australian Embassy officials in Brasilia on 28 August 2003, after his return to Uruguay, Mr Magallenes stated that he had not notified his change of address because he was attempting, up until April 2001, to reconcile with his wife.  That statement was false as he later admitted that he had never sought his wife out after separating from her and that there were no attempts at reconciliation.

12. The provision of false and misleading information in connection with a visa application will almost invariably result in a finding by this Tribunal that the person concerned is not of good character for the purposes of the “character test” posed by s501 of the Migration Act 1958 (“the Act”)  To use the words often quoted in such cases, the observation of truth in dealing with officials in migration matters is of fundamental importance to the effectiveness of Australia’s migration system.

13.     This case is no exception and although Mr Magallenes has offered partial explanations for his false and misleading statements, the Tribunal finds that he has not satisfied it that he passes the “character test”.    The Tribunal does not find that Mr Magallenes’ marriage to Helia Magallanes was contrived for migration purposes although it was not a genuine marriage.

14.     That Mr Magallenes does not pass the “character test” does not mean that he cannot obtain the visa he seeks. Section 501 of the Act also permits the Tribunal to authorize the visa if, having regard to all of the circumstances of the case including a number of “primary” and “other consideration” set out in Ministerial Direction No. 21, it is considered appropriate to exercise its discretion to do so.

15.     The first of the primary considerations, namely the protection of the Australian community, involves an assessment of:

·     the seriousness and nature of the conduct;

·     the likelihood the conduct may be repeated;

·     the likelihood that the visa refusal would prevent like conduct by others.

16. Ministerial Direction No 21 makes it clear that the Australian Government regards serious offences against the Act as very serious, and the provision of false and misleading information in connection with a visa application constitutes a breach of s234 of the Act which is a serious offence against the Act.

17.     As to the question of deterrence I am satisfied that, in a case such as this, if the visa applicant is refused entry because of his breach of Australia’s migration laws others might be more careful about the provision of only truthful and accurate information in and in connection with visa applications.

18.     As Deputy President Wright noted in Chau and Minister For Immigration and Multicultural Affairs [2001] AATA 485 at [25]:

“In my opinion the only effective way of announcing loudly and clearly to prospective migrants from that country,   that they must tell the truth in any application which they make, is by refusing visas to those who make use of fraudulent documents and untrue representations to gain entry into Australia.”

19.     As to the second of the primary considerations, namely the expectations of the Australian community, I also find myself in agreement with the views of Deputy President Wright in Chau (supra) at [25] namely:

“As to the expectations of the Australian community, it is my view that it is expected that non-citizens will be open and honest with migration officials in relation to visa applications and the community would not expect a person who contravenes Australia’s migration laws to later be afforded the privilege of a visa.”

20.     I do not regard the risk of recidivism in this case as of anything other than a minor concern.  Mr Magallenes appears an essentially honourable person. 

21.     The third of the primary considerations, namely the best interests of a child of the visa applicant is relevant in this case because Dayana’s mother has legal access to her in Uruguay and if she were to come to Australia or, if she remained in Uruguay and her father came to Australia without her, she would lose the benefit of contact with both parents living in the one country.

22.     I regard this consideration as essentially neutral in the present case however as Mr Magallenes has obviously raised Dayana alone and any disadvantage to her in losing continued contact with her non-carer parent may well be balanced by the benefits of living with her father in Australia where he would be happiest.

23.     Unfortunately for the review applicant Ms Gadea, who is accepted as being in a genuine loving relationship with Mr Magallenes and who wishes to marry him, none of the “other considerations” often taken into account in the balancing of matters going to the exercise of the Tribunal’s discretion are of direct application to her case.

24.     In particular it is regrettable that Ms Gadea’s compassionate claims can not be taken into account under Ministerial Direction No. 21.    Had she been in a de facto or interdependent relationship with Mr Magallenes they could but not in circumstances where the couple plan to marry but are not yet married.

25.     It is true that the Tribunal’s discretion to nonetheless authorize the grant of a visa in the face of a failure to pass the “character test” is unfettered and equally true that the Act should be administered humanely and compassionately, however in circumstances where Ms Gadea and Mr Magallenes only knew each other for a few months before Mr Magallenes departed Australia and when they did not commit to marry until after Mr Magallenes had left, such weight as can be given to Ms Gadea’s feelings and her desire to bring the one she loves to Australia is not sufficient to overcome the seriousness and nature of Mr Magallenes’ migration misconduct the need for general deterrence and the expectations of the Australian community.

26.     It follows that whilst the Tribunal has considerable empathy for this couple there is not sufficient justification for the exercise of the Tribunal’s discretion in their favour.

27.     The decision of the Tribunal is that the decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC.,
Deputy President

Signed:  K L Miller (Administrative Assistant)

Date of Hearing  26 May 2004
Date of Decision  28 May 2004
Solicitor for the Applicant          Self Represented
Counsel for the Respondent     Mr Steven Small
Solicitor for the Respondent     Australian Government Solicitor