Gorichenko and Minister for Immigration and Multicultural and Ind Igenous Affairs
[2004] AATA 206
•1 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 206
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/2
GENERAL ADMINISTRATIVE DIVISION ) Re
YEVGENIY GORICHENKO
Applicant
And
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date 1 March 2004
Place Brisbane
Decision The Tribunal sets aside the decision under review and in substitution decides that despite being satisfied that refusal to grant the Subclass 309 Spouse Visa to Irina Gorichenko is justified, the power to refuse to grant the visa should not be exercised. .............................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
Migration – refusal of spouse visa – character test not passed –received social security benefits when not entitled–– genuine continuing relationship – significant compassionate grounds – discretion exercised – decision set aside
Migration Act 1958 s 499 ss501 (1), (6)(c) (ii)
REASONS FOR DECISION
1. This is an application for review by Yevgeniy Gorichenko, the Review Applicant, of a decision made on 6 December 2002 by a delegate of the Minister for Immigration Multicultural and Indigenous Affairs, the Respondent, to refuse to grant a Subclass 309 Spouse Visa to the Review Applicant’s wife, Irina Gennadyevna Gorichenko, the Visa Applicant.
2. Yevgeniy Gorichenko and his son, Timofey Gorichenko are both Australian citizens. Irina Gorichenko was sponsored by her husband and was granted a spouse visa on 20 July 1999 in order to migrate to Australia to live with her husband and son. Irina entered Australia on 15 September 1999.
3. Irina Gorichenko lived in Australia up until 9 November 2001, when she was deported by officers of the Respondent for not complying with the conditions of her spouse visa. She had been living apart from her husband from time to time. She claimed she did so because of his physical violence towards her. However, she failed to report the matter to the police and she failed to give particulars of the violence to the Respondent’s delegates. She also received Special Benefits from Centrelink for some of her time in Australia on the basis that she was living apart from her husband. It was alleged that parts of her explanations were untrue.
4. On 24 January 2002, Irina lodged a second application for Spouse Visa (Subclass 309) in Moscow, on the basis of her relationship with Yevgeniy (who was her sponsor).
5. On 6 December 2002, a delegate of the Respondent refused the grant of Spouse Visa to Irina, on the grounds that her past general conduct indicated that she was “not of good character” and she did not pass the “character test” within the meaning of those terms in subsections 501(1) and 501(6)(c)(ii) of the Migration Act 1958 (the Act).
6. At the hearing the Applicants were self-represented and the Respondent was represented by Mr. Gallo, solicitor. Yevgeniy Gorichenko and his son Timofey Gorichenko gave oral evidence. Irina Gorichenko gave evidence by telephone from Kazakhstan, assisted by an interpreter.
7. The Tribunal also had before it the following documents :
(a)The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 , exhibit 1;
(b)Batch of Photographs of the Applicant’s wedding in 1981 and their wedding in 2001, exhibit 2;
(c)A photograph of Applicant’s wife with a black eye, taken in January 2001, exhibit 3;
(d)Photographs of Applicants’ family at Scarborough , exhibit 4; and
(e)Supplementary section 37 Documents, exhibit 5 .
8. The relevant provisions of the Act are :
“501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) …
(3) …
(4) …
(5) …
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a)…
(b)…; or
(c) having regard to either or both of the following:
(i) …
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) …
Otherwise, the person passes the character test.
9. The following background matters are not in dispute and the Tribunal finds as follows:
(a)Yevgeniy was born in Ekaterinovka Village, Russia, on 3 December 1955.
(b)Irina was born in Crimea Oblast, Ukraine, on 1 August 1960.
(c)Yevgeniy and Irina first began living together in August 1980. They married each other on 18 April 1981.
(d)On 3 August 1981, Irina gave birth to their son, Timofey, in Vladivostok.
(e)Yevgeniy and Irina could not obtain a flat of their own to live in. they lived with Irina’s parents. This caused problems because Irina’s parents did not approve of Yevgeniy and they had opposed the marriage. They did not approve of him because he was a member of the Hare Krishna religious sect. (Apparently the Russian authorities did not approve of him either, for the same reason.)
(f)On 7 September 1983, Yevgeniy and Irina were divorced; apparently to appease Irina’s parents.
(g)Yevgeniy then lived with his parents and Irina and Timofey lived with Irina’s parents. However, they still saw each other on a regular basis.
(h)In 1984, Irina’s parents moved from Vladivostock to Almaty, in Kazakhstan. Irina and Yevgeniy took over the flat that Irina’s parents had vacated. They then lived in a de facto relationship.
(i)Irina had been studying at university during the early 1980s. In 1986 she ceased studies and became a full time wife and mother. Yevgeniy worked and supported Irina and Timofey. He worked for a company which did home renovations. He prepared quotations for jobs.
(j)In 1989 and 1990, Yevgeniy was away from their home in Vladivostok for long periods of time. He spent a lot of time in Moscow and in Lithuania.
(k)In 1991, it was decided between them that Irina and Timofey would re-locate from Vladivostok to Almaty, to live with Irina’s parents. Yevgeniy was planning to leave Russia. They parted in Vladivostok in late November 1991, when Yevgeniy left for Australia. Irina and Timofey went to Almaty in December 1991. Before they parted, Yevgeniy sold the two cars which he owned and gave Irina half of the proceeds. They hoped the money would be enough for Irina and Timofey to live on for a few years.
(l)On 21 December 1991, Yevgeniy entered Australia via Japan as part of a sailing crew from Vladivostok, to compete in the Sydney to Hobart yacht race. He entered on a Sport Visa (subclass 421).
(m)Yevgeniy was not in fact a sailor. He did not compete in the yacht race. However, he remained in Australia. He applied for refugee status in 1992.
(n)Yevgeniy first lived in Australia in a Hare Krishna temple in Sydney for two years. He then moved to Brisbane.
(o)Yevgeniy was granted a Protection Visa on 2 February 1998.
(p)On 8 June 1998, Yevgeniy was granted Australian citizenship.
(q)Yevgeniy and Irina kept in constant contact during the years they were separated. Yevgeniy sent money to Irina when he could afford to do so. They decided in 1996, that applications would be made for Irina and Timofey to join Yevgeniy in Australia. Fees were paid, but Yevgeniy realised he could not afford the total expense and he applied for a refund. In 1997 they agreed that Yevgeniy would first apply for Timofey to live in Australia and then later for Irina to live in Australia. Yevgeniy could not afford to sponsor both of them at the same time in 1997. Additionally, Irina was due to have an operation in February 1998.
(r)Yevgeniy applied in January 1997, for his son to join him in Australia. Permission for his son to travel was given on 20 June 1997.
(s)Timofey arrived in Australia in January 1998. He was then 17 years of age. He had not seen his father since 1991.
(t)On 20 April 1998, Yevgeniy applied to sponsor Irina for migration to Australia.
(u)Irina lodged an application for a Spouse Provisional (Class UF) Visa and a Spouse (Migrant)(Class BC) Visa in Moscow, on 22 July 1998.
(v)On 20 July 1999, Irina was granted a Spouse Provisional (Class UF) Visa.
(w)Irina arrived in Australia on 15 September 1999.
(x)Yevgeniy, Irina and Timofey initially lived at Herbert Street, Scarborough.
(y)Timofey was granted Australian citizenship on 26 January 2000.
(z)On 11 February 2000, the Department wrote to Irina, as part of the second stage of processing for Spouse Visa, a letter requesting various statutory declarations regarding the genuine and continuing nature of their relationship, a clearance from the Australian Federal Police, plus any other material which would prove the continuing relationship. This was mostly complied with by May 2000.
(aa)In August/September 2000, Yevgeniy was informed that his father, in Vladivostok, was seriously ill and would probably die. He decided to travel to Russia to see his father before he died. Yevgeniy and Irina had numerous and violent arguments about the expense to be incurred if Yevgeniy travelled to Vladivostok. They had limited financial resources. During at least one of the arguments Yevgeniy struck Irina.
(bb)Yevgeniy borrowed the money he needed to go to Vladivostok. He went in September or October 2000 and he was away from Australia for about one month.
(cc)During the time that Yevgeniy was away from Australia, Irina was left with no money for rent or food. She approached Centrelink for assistance, and was granted the “Special Benefit” on 24 October 2000. She also decided that she no longer wished to live with Yevgeniy. She rented a flat at Eversleigh Road. Timofey and his girlfriend also went with Irina to live at Eversleigh Road.
(dd)Irina was paid the Special Benefit each fortnight from 24 October 2000 until 6 November 2001.
(ee)Yevgeniy worked as a security officer from 1996 to May 2002. He then became a student – living on a social security benefit. He hopes to be able to upgrade his educational qualifications to allow him to join the police force.
(ff)On 5 April 2001, an officer of the Department, Linh Tran, contacted Irina for the purpose of following up the procedures relating to ensuring that the holders of spouse visas were complying with the rules. The officer’s records indicate the following sequence of events and conversations:
“I contacted A/N on 3880 1855 regarding incomplete doc that A/N and sponsor have provided. A man answered the phone. I requested to speak to A/N. He advised that A/N doesn’t live there any more and he gave me a phone no for A/N 3880 2398.
…
I asked him who he was? He replied he’s former partner. I asked his name and whether he’s the sponsor. He hand (sic) the phone I tried to ring 3880 2398 few times but the phone was engaged.”
Later the same day Irina and Timofey attended the office of the above mentioned officer. The officer made the following notes.
“A/N attended this office with her son saying someone rang her.
A/N has very very limited English, her son is translating for her.
A/N left her husband on 15/9/2000 while sponsor was holidays in Russia. sponsor left her with no money in the unit by herself. She didn’t have any money to paid for rent. A/N now lives with her son who is Aust citizen:
3/3 Eversleigh Rd
Scarborough QLD 4020
Ph 3880 2398
A/N’s on Special Benefit. A/N contacted sponsor few times regarding immigration matters.
I asked her why did she leave her partner. She said that she gets verbal abuse and trying to hit her few times. I asked her why didn’t she contact the dept. after she left her husband.
A/N said she doesn’t know what to do and where to go and her sponsor has all the paper also she can’t speak English.
I find very hard to get information from A/N specially her son translating for her.”
The officer then handed Irina a letter which set out the three circumstances in which she could continue to live in Australia (on the basis that she was no longer living with her husband). She was told to respond to the letter within 35 days.
(gg)On 1 May 2001 Irina lodged a Form 1040 Statutory Declaration under the domestic violence provision of the Migration Regulations with the Department of Immigration and Multicultural Affairs. The declaration contained the following:
“Constant verbal abuse and arguments In September 2000 physical abuse evidence on picture attached, because of fear for my personal well being I had moved out to rented flat.”
There was no court follow up action on this matter.
(hh)On 13 August 2001 a delegate of the Respondent wrote to Irina at 3/3 Eversleigh Rd to inform her of the following:
“ I refer to your application for a permanent visa lodged in Moscow on 22 July 1998. On 5 April 2001 you were handed a letter by the department regarding the breakdown of your relationship. That letter provided 35 days for you to respond. Since then you have not provided any further documentation, nor have you sought additional time in order to do so.
You are required to provide any such documentation within 14 days of the date of this letter. If you are unable to comply with this requirement your application may be refused….”
This letter was sent by registered post and later returned to the Department unclaimed on 1 September 2001.
(ii)On 31 August 2001 a further letter from the Department was sent to Irina at 3/3 Eversleigh Rd. In this letter a delegate of the Respondent decided to refuse to grant a Spouse (Migrant) (Class BC Visa (Subclass 100)) to Irina. The relevant excerpts of the record of decision are as follows:
“CASE HISTORY
The applicant was granted a spouse provisional (Subclass 309) visa on 20 July 1999. Departmental records reveal that the applicant arrived in Australia on 15 September 1999 and has not since departed.
The department received information on 5 April 2001 that the relationship between the applicant and sponsor had broken down. The Department handed the applicant a letter on the same date, requesting information that might be considered for the grant of a visa despite the change in circumstances. A follow up letter was posted to the applicant on 13 August 2001, providing fourteen days for a response. No response or other correspondence has since been received from the applicant.
ASSESSMENT
..The application relates to a Spouse (migrant) (class BC) Visa. The prescribed criteria are at Part 100 of the Migration Regulations 1994.
·Where it is assessed that domestic violence has occurred in the relationship (subclause 100.221(4))
The applicant has failed to respond to a letter from the department providing an opportunity to put forward information about any such circumstances.
…
I therefore find that the applicant fails subclause 100.221.
Based on the available information and on my assessment, I have decided to exercise my delegation under s 65 of the Migration Act 1958 9 as amended) and refuse the grant of a Spouse (migrant) (Class BC Visa (Subclass 100) to Irina Gorichenko.”
(jj)In September 2001 Irina signed a lease for a unit at Queen St Scarborough. Her son, Timofey, then began to live at this address with his girlfriend.
(kk)On 6 November 2001 officers of the Department arrested Irina at Queen St and placed her in detention.
(ll)On 6 November 2001 Irina was interviewed by an officer of the Department. The record of interview indicates the following:
· Irina was using a friend as an interpreter.
· In the “marital status” section, the word “De facto” was written in, then crossed out, followed by the word “Single”.
· Irina said that she did not know her visa was invalid. She sold her apartment in Kazakhstan.
· Irina said that she applied for a protection visa – 12 months ago – in Brisbane, and that she was given a new application form three months ago (the interviewer noted, “possibly misunderstand domestic violence provisions”). She did not know what had been the result of the application.
· Irina said that her current address was Queen Street, Scarborough.
· Irina said that her family in Australia consisted of Tim Gorichenko.
· Irina said that her passport and travel documents were at Scarborough Road, Scarborough.
· Irina said that she wanted to stay in Australia because she had nowhere else to go and she has a son here. (The interviewer made a note – “has been in defacto relationship for one year – broke up Sept 2000”).
(mm)On 7 November 2001 the Department directed that Irina be held in immigration detention on the basis she was an unlawful non-citizen until her departure on 9 November 2001. Attached to the direction was a file note of an officer of the Department dated 8 November 2001:
“Spoke with the ex-spouse of the a/n Yevgeniy Gorichenko. He advised that the situation was all a misunderstanding and that he had never hit his wife nor had there been any domestic violence. Yevgeniy advised that his wife had gotten a black eye from “tripping over and hitting her head”.
Yevgeniy advised that he works for Prestige Security, and has recently purchased the property at 246 A Scarborough Rd Scarborough.
Yevgeniy agreed to purchase an airline ticket on behalf of his wife for her return to Kazakhstan and present it to the Department on 08/11/01.”
(nn)On 9 November 2001 Irina was deported from Australia. The official records show she purchased her own ticket to Russia.
(oo)On 24 January 2002 Irina lodged an application for a spouse Visa (subclass 309) in Moscow, again on the basis of her relationship with Yevgeniy.
(pp)Irina was interviewed by an officer of the Department on 26 April 2002 in Yekaterinburg, which is over 1,000kms from Almaty; relevant excerpts from the interviewer’s notes are as follows:
“Q. Did you leave before or after he returned from Russia? Before, but after some time I returned back to him.
Q. Where did you live? 3/3 Eversleigh Rd, Scarborough, tel, I didn’t have, my son had mobile.
Q. When did you move there? In October 2000 I rented the flat for O6M, but my son came with his girlfriend at Eversleigh Rd and they began to live there with his girlfriend.
Q. When return to husband? End of Oct beginning of Nov 2000
Q. When did son and his girlfriend move to Eversleigh Rd? from beginning of Nov 2000 till, 1 August 2001.
Q. There was no telephone number there? They had normal mobile numbers, they didn’t have telephone b/c they didn’t pay for it it was disconnected.
Q. When? First shortly after NY, then it connected for 2/w then disconnected.
Q. Did they connect it again? No it was permanently disconnected. I wanted to have free telephone number so people could call me, my son was looking for a job but we couldn’t get it.
Q. Telephone of place PA + sponsor lived. 3880 1855
Q. After you returned back to husband in Nov 2000 did you continue to live with him. Yes. In January 2001 we bought a house.
Q. Address? 246A Scarborough Rd, Scarborough. Telephone – same number 3880-1885
Q. Who paid for this house? My husband paid b/c he was working and I was unemployed.
Q. So you were totally financially supported by your husband? Yes.
Q. Who else lived there? Just 2 of us, PA + spo, son + his girlfriend visited us. In August 2001 they stayed with us b/c they couldn’t find a flat.
Q. So until August ’01 they lived at Eversleigh Rd? Yes.
Q. When did you move to this new house? 25 Jan 2001.
Q. What happened next? Except for my son not being able to find a flat as he was unemployed.. His girlfriend was working but they were often refused to find a flat. Then I went to Real Estate and got a flat for myself + my son.
Q. When? Sept 2001.
q. Address? 37 Queen St, Scarborough.
Q. Why did you do that? He couldn’t rent a flat.
Q. Why not stay with you? He didn’t.
Q. How was it that you could get a flat? I don’t know .. being young + unemployed.
Q. But you were unemployed as well? Yes. Two times we were refused when we went together.
Q. Did his girlfriend live at this address? Yes.
Q. And you? I lived at Scarborough Rd.
Q. So your name is on the lease but you didn’t live there? Yes. I visited only.
Q. Don’t you think its incorrect to put your name on the lease if you had no intention of living there? I wanted to help my son. Later he changed his registration so only he was living there.
Q. Did you have any prob with your husband? No. In Oct 2001 we had holidays together.
Q. After you arrived in A/a you lived all the time together except for Sept/Oct 2000 you had argument and separated for 02/m and that is it? Correct? Yes.
Q. So from Nov 2000 you lived together ć husband had no problems? Not separated? Yes.
Q. Why did you leave A/a? B/c I didn’t inform the Department of your address.
Q. It a condition of your visa. You agree that you have broken a condition of your visa? Yes. Then in summer 2000 I was advised by the Department to show I was still living with my husband. So I prepared all docs, police cert, I was asked to wait but noone told me anything.
Q. Did you make any approaches to the Dept? I went there but it was later after I got all these docs. It was after my husband left.
Q. When was it? I don’t remember.
Q. The month? I don’t remember. I just remember him coming to bring this photograph when I was beaten. I wanted to claim DV.
Q. Why? It was only one occasion! I didn’t want to create difficulties for him.
Q. Why did you think you entitled to this? DV visa – I was really angry with him.
Q. But you said you didn’t want to create difficulties for him? But when I was told I had to go to the police I decided not to do it.
Q. So you weren’t serious in your claim of your DV? I went ć my son.
Q. But if you weren’t prepared to go to police it must mean it wasn’t a big problem? Yeah, but when I was told I had to go to police first I realised how it could be important for my husband and decided not to do it. I realised that he could have difficulties at work and also our friends didn’t know about this, I didn’t tell anybody.
Q. So it wasn’t a serious for you? For me no, so I thought it could be a serious prob for my husband.
Q. When did you tell the Dept. about it? Not immediately, I was scared.
Q. Before he returned for O/S? After my husband went to Russia and I went there with my son.
Q. Are you sure your husband was in Russia? He probably already came back from Russia.
Q. So it was before Nov 2000 when you returned to him? Before Nov 2000.
Q. Was it before you returned to him that you applied for DV to Department? I went there with my son before he returned.
Q. So you went there and mostly after returned to your husband, does it make sense? As I said, I went there and realised how serious it could be for my husband, he returned from Russia, I had a conversation with him & I returned to him.
Q. Did you make any contact after that. I received a call from him. We were already in the new house. It was after 25 Jan 2001.
Q. How long after? Maybe April or May.
Q. What did he say. He spoke to my husband. I was not at home at the time. I was at TAFE. Tel 3880-1855. He asked for me and my husband said I was not available. After that I decided to go to the Dept again. When I came there I said that Lin called me, Lin was not there and another officer spoke to me and said b/c I didn’t provide a police certificate my appln for DV was refused.
Q. So you didn’t mention your DV appln? I understand I was not serious enough about this appln. We do not treat this seriously.
Q. So in May 2001 you were advised by the Dept that your appln for DV was refused? Yes approximately.
Q. What did you decide to do? Nothing.
Q. Did you advise Dept of your change of address when you went there? No.
Q. Why not? B/c I still had my name registered against the flat of my son.
Q. But you weren’t living there? No.
Q. What address did you give to Dept where living? Eversleigh Rd. I had a student licence and this address was listed there.
Q. Tell Dept that reunited with spouse? No I didn’t inform Dept living with spouse.
Q. What were circumstances of leaving A/a. In the morning went shopping with my son it was beginning of Nov. On the way back we went to his place in Queen St. There were 3 of us there. 2 of us and his girlfriend. Knock on door – 3 persons came, introduced themselves as Dept Officers. They asked me if I was living there and, I said yes.
Q. Why yes? B/c this flat we rented 2 or 3 weeks before and it was in my & my son’s name.
So I was detained and brought to the Dept.
Q. What were the reasons? B/c I didn’t inform Dept of address. I didn’t receive letter visa due to expire. Letter said visa valid until 1 Oct 2001. But I hadn’t received this letter. B/c this letter was sent to my previous address to Eversleigh. Although my telephone number was the same but noone called me.
Q. But you had given address of Eversleigh Rd? But Lin still used the same telephone number when I was there.
Q. But you said you gave Eversleigh Rd to Dept & no telephone number? Yes. But they had called my husband before.
Q. But they visited you at son’s address? Yes. But I didn’t inform them of this address. Then I had to leave, my husband paid for my return ticket.
Q. Has your husband visited you since you left Australia or not? No. He didn’t come here to visit me. He calls me every week.
Information you have provided seriously contradicts info seriously contradicts info today.
DV appln lodged 1 May 2001.
The information we have repeated from husband from 15/9/2000 to 1 May 2001 lived separately.
Contacted at Eversleigh Rd, there was a telephone there: May 2001.
Constant verbal & physical abuse.
Contradicts info that not separated from husband, bought house together.
I want to say that I lived with my husband. I remember that I brought this photo. We never had such serious arguments as in Sept. I would say I would like to live with my husband. Especially now we started our own business.
Q. Why did you lie to the Dept on a number of occasions? I don’t know maybe its my mistake.
Q. Why should we believe. I didn’t know the laws. I would never do such things again. Especially since we have been apart for these last six months.
Your pattern of behaviour shows a pattern of behaviour of not following Aust Migration laws & legislation.
I know that. I was not right I was not thinking of what I was doing. I was not thinking I was breaking the law.
I will take your comments into account and the fact that you regret your actions and I will consider all of the information carefully.
ASSESSMENT Character refused”
(qq)On 6 December 2002, a delegate of the Minister decided to refuse the grant of the Spouse Visa (subclass 309) to Irina, on the grounds that she did not pass the character test. In particular, the reasons for refusal were encapsulated in the following passage from the delegate’s reasons:
“Ms Gorichenko has provided a significant amount of false and misleading information to the Department in relation to her relationship with the sponsor and in relation to the processing of her permanent visa in Australia.
She provided false information to immigration officers at her interview on 26 April 2002 concerning her relationship with the sponsor.. At interview she claimed that she returned to her sponsor’s address in late October or early November 2000 and that she continued to live with him until she was removed from Australia in November 2001. This contradicts all information provided by Ms Gorichenko to immigration officials in Australia. Even at the point of her detention and removal from Australia, she continued to state that she was not in a relationship with Mr Gorichenko and that the relationship ended in September 2000.
Departmental records contained on file 98/120004 also significantly contradict Ms Gorichenko’s account of her dealings with the Department while she was in Australia. For example, at interview on 26 April 2002 Ms Gorichenko stated that she approached the Department and applied for ‘domestic violence’ before her husband returned from Russia in November 2000, whereas the summary above shows that no such approach nor application was made by Ms Gorichenko at this time. She also indicated that when she approached the Department in April or May 2001 (following the case officer’s phone call), the case officer Linh Tran was not available and that someone else advised her that her domestic violence application was refused. To the contrary, file 98/120004 shows that Linh Tran did see Ms Gorichenko on 05 April 2001 and that she provided her with a letter outlining her options and requesting documents within 35 days.”
(rr)On 22 January 2003, Yevgeniy and Irina re-married in Almaty, in the Republic of Kazakhstan.
10. Yevgeniy Gorichenko gave evidence to the Tribunal. He made the following further points (among others):
· When he heard about his father’s serious illness in September 2000, he himself became emotionally sick. He decided he had to go to see his father. He did so. He and Irina had serious arguments about it.
· When he came back to Australia from Vladivostok, Irina was at a separate address. He went to see her and persuaded her to return to live with him.
· Thereafter, Irina lived continuously with him except for a few occasions when they had “fights” when Irina would go and stay with their son for a time. They had a fairly serious disagreement in about May 2001, which resulted in a temporary separation.
· He bought a home at Scarborough Road, Scarborough in January 2001. The cost price was $90,000. He borrowed money for the deposit from relations in Vladivostok.
· Irina lived with him at Scarborough Road.
· He produced photos showing he and Irina living at Scarborough Road,
· His son Timofey and Timofey’s girlfriend lived with him and Irina in August 2001, for one month because their lease on Eversleigh Road expired, and they could not get another flat because they did not have a rent history.
· He knew Irina was receiving a social security benefit. They used the money to help pay the bills. He knows it was wrong to receive the money and he acknowledges that a large portion of the money received will have to be repaid.
11. Irina Gorichenko gave evidence by telephone, with the aid of an interpreter. She made the following further points (among others):
· When Yevgeniy went to Vladivostock in September/ October 2000, she was left without money. She sought help from Centrelink, and was granted Special Benefit. She rented a flat in Eversleigh Road.
· When Yevgeniy returned from Russia, they reconciled their differences. She understood and accepted that Yevgeniy had gone through a bad time. She returned to live with him at Herbert Street.
· Her son Timofey and his girlfriend remained living in the flat at Eversleigh Road.
· After she returned to live with Yevgeniy she continued to receive Special Benefit from Centrelink. Everything she received from Centrelink she gave to her husband. He used the money to pay their bills.
· In January 2001, she and Yevgeniy moved into a house in Scarborough Street. Yevgeniy told her that he had bought the house with money he borrowed from friends or relatives in Vladivostock.
· In April 2001, she and Yevgeniy had an argument during which he hit her. She went to live with her son and his girlfriend at Eversleigh Rd. It was at this time Yevgeniy told her that the Department wanted to see her. She went to see the Department. She told the representative about her husband hitting her. She later produced a photo of herself which showed that she had a black eye and a plaster on her forehead.
· The photo of Irina with the black eye was taken at the Scarborough Street house. It shows Irina holding a cake box with a cake in it. On the cake there is a photo of the Scarborough Street house, plus the following words in icing sugar:
“ Congratulations on your new home from Michael Knight”
Michael Knight was the local real estate agent through whom they bought the house.
· When she was interviewed by the representatives of the Department in April 2001, she was told to go to the police.
· In April 2001, she stayed at her son’s place for 2 or 3 days. Yevgeniy came around to Eversleigh Rd on a bicycle. They made up and she returned to live with him at Scarborough Street.
· She did not want to pursue the matter of domestic violence with the police. She did not want to cause trouble for her husband.
· On 1 August 2001, the lease expired on the flat at Eversleigh Rd. Timofey and his girlfriend moved into the Scarborough Street home with Irina and Yevgeniy until they could find a new flat.
· Timofey had trouble finding a flat. Letting agents did not want to rent to him because he was young and unemployed at the time.
· Irina used her name to take out the lease on a flat at Queen Street, Scarborough. Timofey and his girlfriend then moved to Queen Street.
· In October 2001, Yevgeniy and Irina went together to a wedding at the Gold Coast. They then went on to Sydney for a short holiday. They then returned to live at Scarborough Street together.
· On 6 November 2001, she went shopping with Timofey. After returning with the groceries to the Queen Street flat, they heard people knocking on the doors at the front and the back of the apartment. The strangers turned out to be officers of the Department. They demanded to see her passport. She told them it was at Scarborough Street. Timofey went to Scarborough Street to get her passport.
· She was held in a prison cell. She was told that if she produced $20,000.00 she would not be held in gaol. She did not have the money, so she remained in gaol.
· She was later taken in handcuffs to the airport and put on a plane to Russia.
· In early 2003, Yevgeniy travelled to Kazakhstan and they were re-married.
· Timofey is her only son. She loves him and wants to be near him.
· Although she and her husband have a somewhat stormy relationship from time to time, she loves him and does not want to face the further separation from him and her son.
12. I do not accept that Irina Gorichenko:
“ …provided a significant amount of false and misleading information to the Department in relation to the relationship with the sponsor and in relation to the processing of her permanent visa to Australia.”.
13. There are two aspects of her interviews in Australia, which lead me to the conclusion that it is unfair to Irina to find that she deliberately gave false information to the Department. One aspect relates to language difficulties the interviewers had with her. I am not at all satisfied that she was able to do herself justice. The other aspect is the fact that the interviews concentrated on the separation of her and her husband in September 2000 and the reasons for it. They did not seem to consider or ask questions about the possibility that in the meantime there had been reconciliation. The house in Scarborough Street was not mentioned in any of the Australian interviews, even though it appeared in the photograph handed to an officer of the Department in April / May 2001.
14. On 5 April 2001, Ms Tran noted:
“A/n has very very limited English, her son is translating for her…
I find very hard to get information from A/n specially her son, translating for her.
On 6 November 2001, the interviewer noted:
“ possibly misunderstand domestic violence provisions…
Has been in defacto relationship for one year – broke up Sept. 2000.”
15. It is clear that Irina never received the Departmental letter sent to her addressed to Eversleigh Road, in August 2001. She was not living there and neither was her son at that time. They were living at Scarborough Street. The registered letter was returned to the Department.
16. I find that since 1980, Irina and Yevgeniy Gorichenko have had a genuine marriage, or marriage like relationship, with each other. The relationship has survived sporadic incidents involving intense disagreements, physical violence and temporary separations. I further find that they have a continuing commitment to each other.
17. I find that the refusal to grant a Subclass Spouse Visa to Irina Gorichenko cannot be justified on the alleged ground of giving false and misleading statements to the Department about the status of her relationship with her husband.
18. However, there is the matter of Irina continuing to receive Special Benefits from Centrelink during the time when she was living with Yevgeniy. She was not entitled to social security benefits during that time. Yevgeniy had a full-time job as a security officer. Irina has incurred an overpayment debt of approximately $9,000.00. Both Irina and Yevgeniy knew that Irina was not entitled to the benefit while she was being supported by Yevgeniy. That money will have to be repaid.
19. I regard the receipt by Irina of social security benefits to which she was not entitled, and the acquiescence of Yevgeniy in that course of conduct, as showing a flaw in the characters of both Irina and Yevgeniy. They acted dishonestly.
20. Because of her continuing dishonesty with Centrelink, I find that Irina Gorichenko does not pass the character test pursuant to s. 501(1) and 501 (6) (c) (ii) of the Act. The refusal to grant the Spouse Visa to Irina Gorichenko was justified.
21. Despite being satisfied that the refusal to grant the visa was justified, the Tribunal has the discretion , within s. 501 of the Act, to find that the power to refuse to grant the visa should not be exercised.
22. In deciding whether to exercise any discretion to grant a visa the Tribunal must take into account directions made by the Minister pursuant to section 499 of the Act:
“499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).”
23. The relevant directions made by the Minister in this matter is Direction 21, “Visa refusal and cancellation under section 501 of the Migration Act 1958 “, the Direction. The relevant sections of the Direction are as follows:
“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.
…
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.
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 that that given to the primary considerations. These other considerations may include:
(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
…
(b) genuine marriage to or defacto or interdependent relationship with, an Australian citizen….
(c) the degree of hard ship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family , both in Australia and overseas;
….
(g) the nature and seriousness of the offence(s) or alleged offence(s) ( in the context of seeking to evade an outstanding legal matter)
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
…”
24. I regard the matter of the failure by Irina to inform Centrelink of the change in her circumstances and the resultant receipt of over $9,000.00 in benefits to which she was not entitled, as a serious black mark on her character. However, it seems that their experience with the Australian government authorities has very significantly chastened them. There is no record of them ever having been in trouble with authority prior to 2001, and, as much as it is almost impossible to predict future behaviour, it seemed to me to be unlikely that they will offend again. I accept that their promise to repay the overpayment is made in good faith.
25. Irina poses no threat to the Australian community.
26. Irina’s husband and her only child are both Australian citizens and Australian residents. There are very significant family and compassionate reasons for granting this visa.
27. The Tribunal decides to set aside the decision under review and in substitution determines that despite being satisfied that refusal to grant the Spouse Visa to Irina Gorichenko is justified, the power to refuse to grant the visa should not be exercised.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Muller.
Signed: .......................................................................................
Catherine O’Donovan, Associate
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