Glagau and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 638
•21 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 638
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/389
GENERAL ADMINISTRATIVE DIVISION ) Re MANFRED GLAGAU Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President) Date21 June 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Immigration – protection visa – false and misleading statements– whether of good character – inconsistent statements regarding marital status - decision set aside.
Migration Act 1958 – s501
REASONS FOR DECISION
21 June 2004 Mr S P Estcourt QC., (Deputy President) 1. In this case the Tribunal finds in favour of Mr Glagau’s application to set aside the Minister’s decision refusing his partner Rita Sanchez Moreno a prospective spouse visa on the ground that she did not pass the character test posed by s501 of the Migration Act 1958 (“the Act”).
2. The reason for the Tribunal’s decision is that it is not satisfied that the visa applicant made false and misleading statements about who she was coming to visit in Australia when she applied for visitor visas in 1988 and 1999, is not satisfied that she made false and misleading statements concerning her marital status at the time of coming to Australia and later and is not satisfied that she gave false evidence to the Refugee Review Tribunal in connection with an application she made for a protection visa. There being no other character concerns in respect of the visa applicant, the Tribunal is satisfied that she passes the character test.
3. The first matter which is said to reflect on the enduring moral qualities of the visa applicant to the extent that it is for the public good that she should be refused entry to the country is, that between 3 September 1998 and 30 June 2003, she described the people she proposed to visit when she first made visa applications to come to Australia as variously, a female friend, an Australian niece and nephew, a cousin, a relative from Chile whose mother‑in‑law had been a good friend of hers, a friend, a couple Peruvian and Chilean and friends she met in Peru.
4. The visa applicant’s evidence to the Tribunal was that the only people she knew in Australia were Carmen and Raul Veliz. She said that she had been invited by Mr & Mrs Veliz who had sent her a return ticket, they having met her over several years on visits to Peru. Mr Veliz was from Chile and his wife was from Peru. The visa applicant gave evidence, which was unshaken and uncontradicted, that she had always intended to refer to Mr & Mrs Veliz, however that couple may have been described. They were friends and there was a distant relationship which caused them to be regarded as cousins to her and nephews themselves. The applicant’s evidence in this regard was confirmed in all material respects by Mr Veliz, who gave evidence before the Tribunal, and the Tribunal is satisfied with the visa applicant’s explanation, namely:
“At the moment of writing it may have come out confused but I have always referred – it was always referring to the same family.”
5. The Tribunal does not accept that any of the various descriptions of Mr & Mrs Veliz was false and misleading in a relevant sense.
6. The next concern expressed on behalf of the respondent as to the visa applicant’s character relates to what are said to be inconsistent and therefore false and misleading statements about her marital status.
7. The respondent’s submission in this regard is conveniently summarised in the Statement of Facts and Contentions filed in the Tribunal on 29 August 2003.
8. Paragraph 36 of that document reads as follows:
“36. The visa applicant said the following things about her marriage:
36.1 In September 1998 and February 1999 the visa applicant told DIMIA that she was married with three children when applying for Visitor visas. (S4/288 & S5/289)
36.2 In her application for a Protection visa completed on 15 April 1999 the visa applicant described her marital status as married since 1978. There was a separate provision on the application form for her to identify herself as ‘separated’. (S1/254)
36.3 On 14 August 2000, the visa applicant made a statutory declaration which she provided to the RRT that ‘the relationship with my husband is now broken down because of all the stress’ and ‘the relationship with my husband is almost over.’ (S9/312-313) In a subsequent statement made in June 2003, she said that her 14 August statement was correct, that the relationship was almost over, and that she divorced her husband 8 to 9 months later.
36.4 After her divorce, the visa applicant identified herself as divorced in both her statement translated on 4 October 2002 and her Spouse visa application dated 14 October 2002. She said she started her relationship with the review applicant on 19 December 1999 (T28/149 & T35/198) and that they moved in together in September 2001 (T28/152 and T35/198).
36.5 On 10 February 2003, at an interview in Peru, the visa applicant told DIMIA that her relationship with her husband ended ‘a year and a half before 1999’ when they were sleeping separately in the same house. (T35/196)”
9. The linchpin in the respondent’s contention in this regard is the alleged statement at interview in Peru on 10 February 2003 that the relationship with her husband ended “a year and a half before 1999 when they were sleeping separately in the same house”. If as the visa applicant claims she was misunderstood and misinterpreted as to that statement there is no falsity in the other statements set out above. As to the interview on 10 February 2003, the visa applicant said in evidence before the Tribunal:
“No, it – what was correct is that you asked me if the relationship – they asked – they asked – you asked me how the relationship was. The relationship, yes, there were discussions, sometimes quarrels like any other couple, but we were living together like any other couple. In fact when I came to Australia they came to the airport to say goodbye to me as if everything was normal.”
10. The following exchange appears in the examination in chief of the visa applicant in this regard:
“Mr Gilbert: Now, can I ask you about this – that when you were asked at this interview on 10 February 2003 in Lima you are recorded – this is the question and answer recorded. The question was:
When did your relationship with Mr Rodriguez-Medrano end.
The recorded answer is:
About a year and a half before 1999 we were sleeping separately in the same house. I obtained a divorce in Australia and then had it formalised and recognised here in Peru.
Now, can I ask you, is that answer you gave to the officer on 10 February of 2003, was that a correct answer?
The Interpreter:
No, it was incorrect because we were living together in the same house.
Mr Gilbert:The answer records though that you were sleeping separately in the same house?
The Interpreter:
Yes, sometimes that happened because there was a quarrel and like any other couple and then it was back to normal.
Mr Gilbert:So when you actually left for Australia can you just tell us then what was the state or status of your relationship with your husband?
The Interpreter:
Normal relationship.
Mr Gilbert: Now, you mentioned a moment ago I think something about the family coming to the airport, did you?
The Interpreter:
Yes, we have photographs taken. We were said. They said come back soon. And we had those photos taken like a normal couple.
Mr Gilbert:Did you send to Australia by e‑mail a copy of some photographs taken at the airport?
The Interpreter:
Yes.
Mr Gilbert: Do those photographs show your husband and children at the airport?
The Interpreter:
Yes, together, that is correct.”
11. The visa applicant was cross-examined on the subject by Mr Small, counsel for the respondent, and asked what she meant by her statement to the interviewer on 10 February 2003. She replied:
“When Richard Ross asked me various questions my comments about my relationship I made comments that since ,97 we had had various quarrels but we had always lived together. We haven’t been separated through the courts, through the law, we were having our ups and downs like any other couple.”
12. The visa applicant’s statement as recorded by Mr Ross is at odds with everything else that she has ever said about her relationship with her ex‑husband, and each of those other statements are consistent as between themselves. Given that the visa applicant does not accept that the interviewer has correctly recorded what she was endeavouring to convey to him at interview on 10 February 2003, and given the other consistent statements and clear evidence of an ongoing marital relationship as at the time the visa applicant left Peru, the Tribunal is satisfied that the most likely explanation is a misunderstanding as between the visa applicant and the interviewer on 10 February 2003, and that there was no false and misleading statement made by the visa applicant in this regard.
13. The third area in which it is suggested the visa applicant has demonstrated bad character is in relation to various statements made by her and evidence given by her in support of a protection visa application made on 21 April 1999, and subsequently reviewed by the Refugee Review Tribunal (RRT) in Sydney on 6 June 2000.
14. The respondent does not seek to re‑open the RRT proceedings, but points to inconsistencies and timing abnormalities in the visa applicant’s evidence and invites the Tribunal to find that the evidence demonstrates that the visa applicant made false or misleading statements. In doing so, the respondent refers to the RRT decision which is a convenient summary of the inconsistencies and timing abnormalities said to exist.
15. The respondent referred the Tribunal to the visa applicant’s statement in support of her protection visa application dated 14 April 1999, her statement in support of the RRT review dated 25 June 1999, her evidence given to the RRT on 6 June 2000 and a statutory declaration made by her following the RRT hearing on 14 August 2000.
16. The respondent submits that the veracity of the applicant’s claims during the protection visa process should be considered in the context of that process, and that the Tribunal ought to draw inferences about the genuineness of the claims based “on the timing of when particular claims were made or when particular claims were elaborated upon”. The respondent identified the following inconsistencies and incongruities in a Supplementary Statement of Facts and Contentions dated 4 February 2004:
“Nature and timing of threats
17. The visa applicant’s claims about the threats that she and her ex‑husband received vary significantly. The RRT sets out the divergence in her evidence and was not satisfied the visa applicant gave a genuine account of events (T8/89). In summary the visa applicant gave inconsistent evidence about:
17.1 when the threats started – the visa applicant originally stated that the threats commenced in April and June 1994. She submitted a police report to the RRT which indicated the threats started in 1987. The visa applicant first gave evidence to the RRT that the threats commenced in about 1990 then later said they started in 1991. In her statement following the RRT hearing she said she received threats at their house because of her brother‑in‑law in 1988 and personally received telephone threats starting from 1992;
17.2 when the threats ceased – the visa applicant told the RRT that nothing happened following the alleged abduction of her daughter in May 1995. However the visa applicant later said she received threats from 1991 which intensified until 1996 when she resigned her job;
17.3 where they were threatened and what the threats consisted of – the visa applicant originally indicated in her protection visa application that she received telephone death threats. However the police report submitted to the RRT indicated that the visa applicant’s ex‑husband was also threatened in person at home. Then in the RRT hearing, she was emphatic that she was only threatened by phone calls at work because the terrorists could not easily locate her at home. Subsequently in her statutory declaration to the RRT the visa applicant gave evidence that she received telephone threats at home and dead animals had been left on her doorstep.
18. The respondent submits that it is clear that the visa applicant’s evidence diverges even on simple matters such as when the threats occurred and what the threats consisted of. The claims varied between telephone calls at work to serious threats at home with dead animals on her doorstep.
19. The respondent notes that the intensity and seriousness of the claimed threats increases through the PV process and submits that it is open to the Tribunal to infer the visa applicant intended to mislead the RRT by increasingly exaggerating her claims.
Alleged kidnap of her daughter
20. In her application for a protection visa the applicant said that her ex‑husband received threats that the terrorists were going to kidnap her daughter. In her application for RRT review, after she had been refused by the delegate, she stated ‘These people testify (sic) about our constant insecurity and the danger that we confront in view of the threats that we have received, which include the kidnapping of my little daughter.’ In fact the statements of ‘these people’ did not mention the kidnap of the visa applicant’s daughter (Attachment B to these submissions). Further the visa applicant herself gave evidence that she did not report or tell anyone of the incident.
21. The visa applicant only elaborated upon the claims of the kidnap at the RRT hearing. The visa applicant said her daughter was kidnapped on 7 May 1995. She said her daughter was kidnapped on the way to school and that she found out about the kidnap on her return from work. The RRT pointed out her story was unlikely because 7 May 1995 was a Sunday. However the visa applicant replied her daughter went to Japanese school on Sundays and that she worked on Sundays. The visa applicant recanted her evidence in her statutory declaration following the hearing and said instead that her daughter was kidnapped on a weekday.
22. The respondent submits that it is open for the Tribunal to infer that the visa applicant manufactured the claim that her daughter was kidnapped as indeed the RRT did at T8/89. The timing of the claim together with the inconsistency of evidence casts doubts on the veracity of the claim. The respondent submits that the visa applicant’s response to the RRT at the hearing was glib and strongly points to the visa applicant having manufactured the claim. Consequently the respondent submits the Tribunal should find the visa applicant misled the RRT by manufacturing the claim that her daughter was kidnapped.
Visa applicant’s alleged abduction and rape
23. The visa applicant claimed at the RRT hearing that she was kidnapped and raped on 8 June 1994. These claims were significantly expanded upon in the visa applicant’s statutory declaration after the RRT hearing. The RRT rejects the visa applicant’s claims at T8/89. The respondent submits that the Tribunal should infer that the visa applicant manufactured these claims based on the timing of the claim and the totality of the applicant’s evidence in the PV process.
Resignation from work
24. The visa applicant’s evidence about why her and ex‑husband left their jobs shifted through the PV process. Originally the visa applicant said they left their jobs because of the threats. Later she conceded that they accepted redundancy packages because of a restructure in the Peruvian court service. The visa applicant then again shifted and claimed that they resigned because of intensifying threats.
25. The respondent submits that the Tribunal should infer that it is more likely that the visa applicant and her ex-husband left their positions with the Peruvian court service because of a restructure within the court service rather than because of the alleged threats. Consequently the respondent submits the visa applicant made false or misleading statements to the RRT about why the left their employment.
Residences and maintenance of La Victoria property
26. The RRT found that the weight of the evidence before it indicated the visa applicant and her family lived in La Victoria for most of the 1990s (T8/90). This appears contrary to the visa applicant’s other evidence that the family was forced to move around because of the threats. However the visa applicant apparently accepted the evidence pointed to them living in La Victoria and said this was consistent with her other evidence because the family maintained a formal residence in La Victoria while moving about.
27. The visa applicant said that although they left the La Victoria residence, they continued to rent the residence and that their household goods remained there. The respondent submits the visa applicant’s story is unlikely. Firstly the visa applicant’s evidence to the RRT was inconsistent: she initially said her family left the residence in 1998 and later said 1994. Secondly the respondent submits the Tribunal can infer that it is unlikely a family would retain a second residence complete with household goods for ‘sentimental reasons’.
28. The respondent submits the Tribunal can infer the applicant gave misleading evidence about her residence in order to support her claims that the threats to her family were so serious as to warrant moving from that residence.”
17. In her evidence-in-chief before the Tribunal, the visa applicant confirmed that the evidence that she gave to the Refugee Review Tribunal was the truth. She gave evidence that she was in fact raped, but had not revealed that information to anyone apart from her ex‑husband prior to the hearing before the Refugee Review Tribunal because she was afraid of being humiliated. She also gave evidence that, although there was some uncertainty about the date on which her daughter was abducted, she was in fact abducted.
18. In cross-examination, apart from some questions as to the inability of the visa applicant to recall any threats between 1996 and 1999, she was not cross‑examined about any of the matters set out in the extract from the supplementary statement of facts and contentions of the respondent set out above. These matters were not put to her.
19. In the absence of any challenge by way of cross-examination to the visa applicant’s evidence given in chief or at the very least the affording of an opportunity to the visa applicant to explain the alleged inconsistencies and incongruities, and in the absence of some internal inconsistency with the evidence before this Tribunal and the absence of some contradictory material, beyond the impressions of another tribunal in proceedings before it, this Tribunal is unable and indeed it would be procedurally unfair, to make any finding adverse to the visa applicant’s character arising out of the matters set out above.
20. There is one further matter concerning the visa applicant’s protection visa application that needs to be considered.
21. It is contended against the visa applicant that she admitted to the Refugee Review Tribunal that she knew that her case did not come within the Refugee’s Convention, and that she said that she had read the definition of a “refugee” and did not think that her case came within the definition, and said that “she had worked in court opposite lawyers”. The alleged admission is said to be confirmed by her statement in her statutory declaration of 30 June 2003 where she said “my refugee appeal was rejected because my case did not strictly fall within the refugee convention”.
22. It is contended that in spite of her understanding, the visa applicant appealed to the RRT and then to the respondent personally on the basis that she was covered by the Refugee’s Convention and it is said that that amounts to the giving of false evidence to the Department of Immigration and Multicultural and Indigenous Affairs and the RRT in support of her protection visa application which in turn justifies refusal of the present visa on the grounds of a failure to pass the character test.
23. In her evidence-in-chief on this subject, the following question and answer is recorded:
“Mr Gilbert: Now the Tribunal decision records that you were agreeing that your case didn’t come within the Refugee’s Convention. Now, can you just tell the Tribunal do you remember what it was that you said in the hearing about that?
The Interpreter:
Yes I remember saying – what I remember is, to the question that she asked me, I replied to her and I said if I did not fit in with the definition of a refugee I was appealing to her humanity to take to give me a good response to my application.” (emphasis added)
24. In cross-examination she gave the following answer:
“The Interpreter:
When I … say that … if I am not within the definition of a refugee … I beg to the humanity of the member … all I can say is that I begged and I appealed to the humanity of the member to believe and to understand that I was telling the truth ...”.
25. The audio tapes of the proceedings before the Refugee Review Tribunal were tendered before the Tribunal as Exhibit 8, and having heard the recording of that part of the evidence relied upon by the respondent as an admission that the visa applicant knew that she did not fall within the definition of a refugee within the Convention, I can only say that I regard what the visa applicant was interpreted as saying as highly ambiguous and certainly more than capable of bearing the interpretation the visa applicant gives to it. That is to say, I gained the distinct impression that what the visa applicant was saying to the Refugee Review Tribunal was “if” I do not fit within the definition then I nonetheless ask for certain matters to be taken into account on the grounds of “humanity”.
26. The recording of the proceedings before the Tribunal does not justify a finding that the visa applicant pursued a protection visa which to her knowledge she was not entitled.
27. It follows from all that I have said that I do not accept that any of the matters said to cause the visa applicant to fail the character test have substance, and in the absence of any other suggestion that the visa applicant is not of good character, I am accordingly satisfied that she passes the character test.
28. The decision of the Tribunal is that the decision under review is set aside and that the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.
I certify that the 28 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/s of Hearing 31 May 2004
Date of Decision 21 June 2004
Counsel for the Applicant Mr Guy Gilbert
Solicitor for the Applicant IMAC Immigration Lawyers
Counsel for the Respondent Mr Steven Small
Solicitor for the Respondent Australian Government Solicitor
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