Gower and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 1320
•19 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1320
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1093
GENERAL ADMINISTRATIVE DIVISION ) Re CRAIG GOWER Applicant
And
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President, Don Muller Date19 December 2003
Place Brisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration, in accordance with the direction that the application by Anya Lyadova for a Prospective Marriage Visa (Subclass 300) should not be refused pursuant to section 501 (1) of the Migration Act 1958.
................SIGNED...............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
Migration – refusal of prospective spouse visa – providing false and misleading information – genuine relationship with an Australian citizen – notwithstanding provided false and misleading statement on visa application, visa applicant passes character test
Migration Act 1958: s 499 ss501 (6)(c) (ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
REASONS FOR DECISION
1. This is an application for review by Craig Gower, the Applicant, of a decision made by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs, the Respondent, to refuse to grant a Subclass 300 Prospective Marriage Visa to Anya Lyadova, the Visa Applicant.
2. At the hearing the Applicant was represented by Mr Bickford of Counsel and the Respondent was represented by Mr Gallo, solicitor. Craig Gower and his daughter Kirsten Fay Gower gave oral evidence, and Anya Lyadova gave evidence by telephone from Russia.
3. The Tribunal 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)Statement of Sven Petterson dated 28 July 2003, exhibit 2;
(c)Statement of Craig Gower dated 24 July 2003, exhibit 3;
(d)Photographs of the Applicant and Visa Applicant in Red Square Moscow in 2001 , exhibit 4;
(e)Photograph of the Applicant and Visa Applicant in the Russian Summer, exhibit 5;
(f)Photograph of friend Boris Tolmazov, exhibit 6;
(g)Four photographs of the Applicant and Visa Applicant in Thailand ; exhibit 8;
(h)Two photographs of the Applicant and Visa Applicant in Turkey 2003, exhibit 9;
(i)Bundle of e-mails between the Applicant and Visa applicant, exhibit 10;
(j)Statement of the Anya Lyadover dated 25 July 2003, exhibit 11;
(k)Reference of Ilya Belozor dated 22 July 2003, exhibit 12;
(l)Reference of Marina Alekandrova dated 22 July 2003, exhibit 13;
(m)Reference of Ekaterina Anikeeva dated 18 July 2003, exhibit 14;
(n)Reference of Bol’shakova Nikolaevna, exhibit 15;
(o)Reference for Craig Gower from Hopper’s Carpets dated 25 July 2003, exhibit 16;
(p)Statement of Rosalie Fay Gower dated 28 July 2003, exhibit 17; and
(q)Statement of Kirsten Fay Gower dated 28 July 2003, exhibit 18.
4. It is the Respondent’s position that the refusal to grant the visa to Ms Lyadova, pursuant to section 501(1) of the Migration Act 1958, the Act, was justified because she provided misleading information in two previous visa applications. In those applications she failed to disclose her relationship with Mr Gower. Consequently, it was submitted, her past general conduct indicated that she was not of good character, within the meaning of those terms in subsection 501(b)(c)(ii) of the Act.
5. 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).
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a)….
(b)…
(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.
6. If Anya Lyadova does not pass the character test, the Tribunal nevertheless has the discretion within s 501 of the Act to determine that despite being satisfied that refusal to grant the visa is justified, the Tribunal should not exercise the power to refuse to grant the visa.
7. In deciding whether to exercise any discretion to grant a visa the Tribunal must take into account directions made by the Minister pursuant to s 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).
(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
Subsection (1) does not limit subsection 496(1A).”
8. The relevant direction made by the Minister in this matter is Direction 21 , “Visa refusal and cancellation under section 501 of the Migration Act 1958 “, the relevant sections 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
…”
9. The matters for determination by the Tribunal are:
(a)Whether Ms Lyadova’s past general conduct indicates that she is not of good character pursuant to subsection 501(6) (c) (ii) of the Act; and
(b)If she does not pass the character test, whether there are considerations which should enliven the discretion to not refuse to grant the visa.
10. The Tribunal was impressed by Mr Gower, his daughter, Kirsten, and Ms Lyadova, and has no reason to not accept their evidence. The Tribunal finds as follows:
(a)Craig Gower was born on 23 October 1972 and is currently 31 years of age. He is the father of three daughters, Kirsten born on 5 May 1994, Hope born on 8 June 1996, and Maddison born 5 January 1998. He is currently employed as a carpet layer for Hopper’s Carpets in Cairns.
(b)Mr Gower was previously married to Amanda Floyd, whom he divorced on 28 December 2000. Amanda Floyd has not contacted Mr Gower or their three daughters in two years. It seems that she has decided that she does not want the responsibility of being a parent.
(c)Mr Gower has dated several women in Cairns but none of them has been interested in developing a long-term relationship with him because of the responsibility of having to also be a mother to the three girls.
(d)On or about July 2001 Mr Gower contacted a Brisbane business called Russian Introductory Bureau. This business was run by Ian and Elvira Barbour. Mr Gower paid $680.00 to the Barbours in exchange for a number of names of Russian women, which included Anya Lyadova.
(e)Initially they communicated by e-mails and telephone calls. By September 2001 Mr. Gower decided to meet Ms Lyadova in order to establish whether he could develop a long-term relationship with her. He made arrangements to travel to Moscow.
(f)Mr Gower had never travelled overseas before and sought advice from Ian and Elvira Barbour about getting a passport, booking accommodation and flights to Russia.
(g)Mr. Gower travelled to Moscow in November 2001 and met Ms Lydaova for the first time.
(h)Ms Lyadova was born on 22 February 1975 and is currently 28 years old. She was previously married to Gorshkov Yakov Mikhailovitch, who she divorced on 7 May 2000. She has one son, Gorshkov Daviil Yakavlevitch who was born on 19 April 1998 and is currently 5 years of age. Her son has lived with her parents for periods of time because she has been unable to afford an apartment big enough for the two of them. She is currently employed as an advertising manager and is paid the official minimum wage each month, approximately $US300.
(i)Before the couple first met in Moscow in November 2001, Mr Gower sought advice from the Barbours about the steps he would have to take to bring Ms Lyadova to Australia. The Barbours provided certain advice in e-mails dated 16, 22, 30 August 2001 and 5, 16 September 2001 and 16 October 2001. Some of the advice given is as follows:
22 August 2001
“For you to go to Russia I suggest that you would and should go on a ‘Tourist Visa’. Anna’s name is not even mentioned, you are simply going on a holiday to Moscow.. This you could do yourself by just going into a travel agent in Cairns. However, I recommend going through a friend of mine who owns The Russian Travel Bureau. We can organise all this for you. When you are in Russia, we suggest that Anna and you become engaged. Then without your name being any part of it, Anna goes to a travel agent in Moscow (again we have the right contacts in Moscow – Travel Agent who will organise this for Anna.) and Anna would come to Australia as a tourist on a TOURIST:VISA. Nothing is mentioned to any ‘authority’ about you and Anna. Next step, when in Australia, you and Anna get married. At this point application is made for Anna for a SPOUSE VISA. This should be able to be done at the DIMA office in Cairns – but as you know we will assist and advise.
After this Anna would require to return to Moscow for her interview at the Australian Embassy (Consulate) for approval of what is called her SPOUSE TEMPORARY RESIDENCY VISA (sub-class 309). Anna’s required medical can be down either in Australia or Moscow – the choice is yours and Anna’s. Please don’t hold me to this but the time span from the date of application for the Spouse Visa to the date of approval could be at least 9 months.
30 August 2001
“Regards Anna coming back with you, we suggest that you and Anna talk about this because it would be much easier for Anna to come herself and as we discussed before Daniel stays with her mother. But you and Anna must discuss and agree on this first. Anna has then two ways to come back with you.
1. Through a gentleman called Mr Nick Chabrov, who is basically Rob Gordon’s agent in Moscow, a tourist package trip to Australia, based on a tourist visa can be purchased for Anna. To obtain this visa Anna’s accommodation in Cairns must first of all be purchased and paid for. This can be in a very cheap hotel/motel in Cairns (we will discuss this further by phone). Then Anna does not have to stay in that hotel/motel but can stay with you at your place – but again Craig this is something for you and Anna to discuss and let us know. Length of Anna’s stay about 3-4 weeks.
2. Right now you can go to the DIMA office in Cairns and obtain the appropriate forms for you to sponsor Anna to come back with you to Cairns. You would then become Anna’s guarantor and she would not have to book into an hotel/motel in Cairns as a prerequisite of obtaining her visa.
We do not recommend this, even although coming this way Anna could stay for 3 months, because the chances of obtaining a visa this way could be very difficult and at the worst refused. But maybe it is a chance worth thinking about.
The reason we do not recommend this is that we are thinking more of obtaining Anna’s temporary spouse residency visa after you both get married. For you to sponsor Anna right now, apart from the fact that it is always successful, it may be detrimental in obtaining the spouse temporary residency visa and this is something Craig I would not wish, as I don’t think you would either.”
5 September 2001
“I have now instructed Rob as follows. Anna will return on the same flight as you on your return from Moscow at the end of November. She will return on a tourist visa – NOT a visitor visa. YOU ARE NOT SPONSORING ANNA IN ANY WAY OR BEING HER GUARANTOR. (THIS FORMAT WILL BE REQUIRED AT A LATTER DATE FOR SPOUSE TEMPORARY VISA PURPOSES). This tourist visa to be for two months or as close to this as is possible and I have also instructed Rob to organise this visa and her flights to correspond with your return flight so that you both return together. ALL THIS WILL BE ORGANISED FOR YOU, so please don’t worry – just concentrate on matters of the heart. Regards our private talk on hotel accommodation for Anna in Cairns, to get her tourist visa, this I have also discussed with Rob. I have not told him and never will that there is a private plan in place although as Rob knows me by now (very well) I’m sure he knows what we are doing – but likewise he will never tell anyone. WE ARE NOT BREAKING THE LAW. However Rob will now check with the powers that be in Sydney to make sure that it is acceptable for you to book and pay for, and receive the necessary receipts for Anna’s hotel in order to process her visa. So on this point we must wait on Rob’s advice for a few more days. As soon as I get the answer I will let you know. But in any case PLEASE REMEMBER THAT BETWEEN ROB AND MYSELF WE WILL DO ALL THAT IS REQUIRED BOTH FOR YOU AND ANNA IN RESPECT TO VISA<HOTELS<FLIGHTS and all that is done will be the best and for the best – DON’T WORRY AND PLEASE TELL ANNA NOT TO WORRY> We do the worrying for you – you two just be happy in the knowledge that soon you will be together ….”
21 September 2001
“Back to Anna’s tourist visa. On the application form there will almost certainly be the question – ‘give information on what you intend to do when you are in Australia?’ Only a brief description will be required here but I feel now after further thought that it would be wise to say here …) the usual things like going to the Great Barrier Reef, visiting Ayers Rock and other things in Queensland that you can think of – PLUS state that she will be visiting us and spending some time with us as good friends in Scarborough (ie Elvira and myself, stating that Elvira is from Russia) and also that she will be visiting you as an ‘old penpal’ that she used to and still does correspond with. However, let’s wait until Anna has made contact with the Embassy in Moscow and has the form for tourist visa application before making final decisions on this point.”
16 October 2001
“Your flights, tourist visa etc. are now all organised by Rob Gordon as are Anna’s flights for return to Cairns. This leads onto Anna’s tourist visa application form which you and Anna will fill-in, in Moscow, and submit at the Australian Embassy. The following must be with the application.
1. Anna’s International Passport.
2. Take the original receipt from your friend who owns the hotel showing that Anna’s accommodation is paid for for the duration of her stay in Cairns.
3. Anna’s bank statement – we have already discussed this. This is all the back-up documentation required. Now onto filling out the form. I have put a lot more final thought into this.
1. Please do not make any mention of yourself on the application. In fact when you and Anna go to the Embassy it is better that you do not go into the Embassy with her – I mean this.
2. On the form where it asks for information on ‘purpose of applicant’s (Anna) visit to Australia’ please do not make any mention of your name in any way. Not even the suggestion I made previously about Anna coming to see a person she used to correspond with (You).
In this section put down that Anna is simply coming to QUEENSLAND as a tourist and will be staying at the hotel in Cairns. She is coming to see Cairns, one of the most popular tourist cities in Queensland and that when there she will be seeing the Great Barrier Reef and all the other tourist attractions in your area.
Additionally Craig get Anna to put down on the form that she will be, during her stay, coming to Scarborough, Brisbane to see Elvira (Elvira’s previous name was Metlitakaia) – an old friend that she used to know when Elvira lived in Moscow. She will also be seeing the sights of Brisbane, the Gold Coast as well as the Sunshine Coast.
Anna will almost certainly have to put down Elvira’s address do not put my name down on the form unless asked verbally, than Anna just says that I am Elvira’s husband. Our address is 47 Griffith Road, Scarborough, Queensland, 4020, Australia. Telephone No. 7 3203 6009. This is our private telephone number and fax number.
Filling out the rest of the form is simple – just put down the truth.
So at no point is your name mentioned. Anna does not even know you and you do not know Anna. The next thing we will all know is that Anna will be back in Cairns with you and all the children and you both will be getting married – obviously to each other. Then we start sorting out arrangements for Anna’s temporary spouse visa.”
(j)On 16 October 2001 the Barbours sent a further e-mail to Craig Gower. In that e-mail they advise:
“Still at this Question (Q16) where it says, ‘if insufficient space additional details’ write – ‘I have known Ian and Elvira who are his wife, for approximately 2 (two) years. Over this time we have built close correspondence friendship. This is one main reason I wish to go to Queensland, Australia on holiday - to meet them in person at long last. Again if required attach an additional sheet of paper as described Q. 14 above.
Q17 – Please write: ‘I wish to visit Queensland as a tourist, on a holiday, to see the wonders of the country, especially the Great Barrier Reef., Ayers Rock, the beaches and particularly to meet, at along last friends – Ian and Elvira Barbour. The reason I have booked into and …. My hotel accommodation in Cairns is that I believe it is one of the holiday resorts in Queensland.
NOTE: Again use and attach a separate sheet of paper to complete the question if required.
Q18. - Correct.
Q19 to 22 Health and Character – Correct.”
(k)Mr Gower and Ms Lyadova were puzzled by the approach suggested by the Barbours. It seemed to them to be unnecessarily complicated and they could not understand why Ms Lyadova should not disclose that as well as seeing the Barbours she really wanted to visit Mr Gower’s home, to see his three girls and to see if they were all compatible. They raised their concerns with the Barbours but eventually were persuaded by the Barbours to take the course they did. They accept that they were somewhat naïve, but also defend themselves by pointing out that they had no experience in these matters and trusted the Barbours.
(l)On 16 November 2001 Ms Lyadova applied for a tourist visa. In the application form she stated that her friends in Australia were Ian and Elvira Barbour and she did not mention her relationship with Mr Gower.
(m)On 16 November 2001 the application for the first tourist visa was refused. Mr Gower was very upset about the refusal and he immediately rang Mr Barbour to seek his advice. Mr Barbour suggested that Ms Lyadova apply again. He also suggested that Ms Lyadova provide some extra information, which he formulated for her.
(n)On 22 November 2001 Ms Lyadova made a further application for a tourist visa and again stated that her friends were Ian and Elvira Barbour. She still made no mention of her relationship with Mr Gower. The second visa application was refused on the same day. Mr Gower was extremely upset and angered by the refusal. He again rang Mr Barbour, but Mr Barbour said that nothing further could be done and that he should return home.
(o)In late November 2001 before his return to Australia Mr Gower asked Ms Lyadova to marry him. Ms Lyadova did not immediately accept his offer of marriage; she waited a week and then accepted his proposal.
(p)Mr Gower then returned to Australia.
(q)After he returned to Australia, Mr Gower kept up contact with Ms Lyadova by e-mail and telephone. Mr Gower’s daughters also developed a good relationship with Ms Lyadova over the telephone.
(r)In March 2002, Mr Gower again travelled to Moscow. He stayed for two weeks in a Moscow hotel and Ms Lyadova stayed with him for the two weeks.
(s)Following upon the two weeks in Moscow, Mr Gower and Ms Lyadova spent one week in Egypt. At the end of the holiday in Egypt, Mr Gower returned to Australia and Ms Lyadova to Russia.
(t)On 29 April 2002 Ms Lyadova applied for a prospective spouse visa. The suggested wedding date was 1 June 2002. On 7 May 2002 an officer of the Department interviewed her. During the course of the interview Ms Lyadova mentioned that she had filled in her two visa applications sincerely. The Officer concluded after the interview:
“ASSESSMENT
- Doubts about the motivation of Prospective Applicant (PA). Not credible story about how they were introduced to each other, PA knows people migrated to Australia and friendship with them and PA not clear
-Misleading information on visitor visa application in order to secure visa
- appear to be ill matched..PA has not considered carefully about issues with children
- PA has been up until now living with ex-husband
- Not genuine relationship demonstrated.”
(u)Neither Ms Lyadova nor Mr Gower received any further information until 18 September 2002 when the Department wrote to Ms Lyadova to indicate to her that her application for a Prospective Marriage Visa may be liable for refusal on the basis she did not pass the character test in s.501(6) (c) of the Act, in that she did not disclose on her tourist visa applications her relationship with Mr Gower.
(v)On 14 October 2002, Mr Gower’s solicitors provided a response, the relevant parts of which were:
“11.We are instructed that Ms Lyadova concedes that she did not disclose her relationship with the applicant in her applications of 16th and 22nd November 2001 respectively and that at the interview she stated among other things that she had intended to meet with Elvira Barbour in Brisbane and had hoped that the sponsor would invite her to travel to Cairns.
12.We do not take issue with the fact that the failure to disclose the relationship in the first two applications and the statement at the interview on the 7th May 2002 were false.
13.We are instructed that the reason for this was that the Applicant and Mr Gower had simply followed advice given to them by the Barbours. They now appreciate and concede that they were naïve in accepting and following that advice. The applicant and Mr Gower had acted in good faith believing that the process recommended was appropriate to enable Ms Lyadova to travel to Australia.
14.Our clients concede that, in their naivety, they have risked the prospects of the Applicant obtaining her Prospective Spouse Visa. They feel betrayed by Ian and Elvira Barbour who should have provided them with proper advice given their circumstances or, referred them to a registered Migration Agent to obtain advice in respect of their Visa possibilities and the proper ways in which they might go about applying. We are unaware of whether Ian and Elvira Barbour are registered Migration Agents. In any event, the advice provided to our clients who relied and acted upon that advice in good faith was clearly wrong and was advice which our clients accepted from people in whom they held a deep trust. The extent of the trust is clearly evidenced in the enclosed exchange of e-mails between the Barbours’ and our clients.
15.We respectfully submit that Mr Gower and the Applicant have a genuine relationship, intend to marry and that Ms Lyadova is a person of good character. We ask that you take into account the relationship between the parties, the fact that they acted on advice given to them by people they both relied upon and trusted and that they had acted in a way which they thought was based upon proper advice from the Barbours.”
11. On 15 November 2002 the delegate for the Minister issued a Notice of Decision to refuse a visa under section 501 of the Act. In the decision the delegate concluded that Anya Lyadova provided false and misleading information to the Department on the following occasions :
“
· In her visitor visa application of 15 November 2001, she failed to declare Mr Craig Gower as a friend or contact in Australia even though she was in a serious relationship with Mr Gower. She also stated that she intended visiting Elvira Barbour in Brisbane, when her itinerary clearly showed that she did not intend staying in Brisbane at all.
· Despite the refusal of her first visitor visa application, Ms Lyadova re-applied providing the same story, albeit with more detail.
· In relation to her Prospective Marriage visa application, Ms Lyadova provided false information to immigration officers at her interview. She stated that she intended visiting Elvira and that she had filled out the visitor visa application forms in a sincere manner.
· In relation to her Prospective Marriage visa application, Ms Lyadova provided false information to immigration officers at her interview. She stated that she intended visiting Elvira and that she had filled out the visitor visa application forms in a sincere manner.
…
The letter from her sponsor’s agent indicates that Ms Lyadova acknowledges and regrets that she provided false statements in her visitor visa application. She also apologised for this but sought a favourable decision on her Prospective Marriage visa application.
In making this assessment, I must also take into account both good and bad conduct demonstrated by Ms Lyadova. There is no evidence before me that Ms Lyadova has demonstrated good conduct. To the contrary, Ms Lyadova provided false and misleading information at her interview on 07 May 2002 despite being warned of the consequences of doing so.
I am, therefore, satisfied that Ms Lyadova was aware of the seriousness of providing false or misleading information at interview but chose to do so regardless of the consequences.
Having considered all of the information before me, I am satisfied that Ms Lyadova does not pass the character test.”
12. The Applicant applied to this Tribunal on 13 December 2002 for a review of the decision to reject Ms Lyadova’s Prospective Marriage Visa (subclass 300) and that of her dependent, Daniil Gorshkov.
13. The Tribunal accepts the evidence of Mr Gower and in particular the following matters:
(a)He communicates almost everyday with Ms Lyadova via telephone and e-mail. He has developed a close emotional relationship with her and is love with her. He has taken several trips overseas in order to be with her.
(i)November 2001 in Moscow;
(ii)March 2002 in Moscow;
(iii)September 2002 in Russia;
(iv)January 2003 in Thailand; and
(v)June 2003 in Turkey.
(b)Over the past two years his three daughters have developed a close emotional relationship with Ms Lyadova. They speak to her almost everyday on the phone or by e-mail. He has encouraged this relationship. They generally talk about what the girls are doing at school and often ask when Anya Lyadova is coming to visit them. His girls really want a mum and want someone to love them. He has developed a close relationship with Ms Lyadova‘s son.
(c)He acknowledged that he relied heavily on the Barbour’s advice in meeting Ms Lyadova, travelling to Russia and the visa application forms He did not even know how to apply for an Australian passport. He had no reason to doubt them as he felt he could trust them. In addition, the Barbours had been through the visa process before and they seemed to know what they were doing. He knew he was lying and questioned the Barbours as to whether he and Anya were doing the right thing but Ian Barbour said everything was going to be “OK” and this was the only way to get Ms Lyadova to Australia.
(d)He has tried to locate Ian and Elvira Barbour but their telephone has been disconnected and they have not responded to letters at their last known address.
(e)He has thought about the possibility that Ms Lyadova may not be genuine in her expression of affection for him. However, he has discounted this for the following reasons:
·The relationship he has had with Ms Lyadova over the last two years is “so natural that it could not be false”.
·Ms Lyadova has a fairly good life in Russia. She has family, friends and a career.
·Ms Lyadova has never asked him for anything. When he knew she was living in one room and that her son had to live with her parents he offered to pay rent for her in order to allow her to live with her son. She has never asked him for a cent.
14. Ms Lyadova provided a written statement and gave oral evidence by telephone to the Tribunal. She was also assisted by a Russian interpreter. The Tribunal accepts her evidence and in particular the following points:
(a)She first contacted Ian and Elvira Barbour by letter. She received a response some 2 months later. She had never met them but they sent her a photograph of themselves and she felt as if she could trust them. Several months later she received an e-mail from Craig Gower and began corresponding with him by letters and e-mail..
(b)After she and Mr Gower met in November 2001 they became very close emotionally and they both decided that they would be able to develop a long–term relationship. They became engaged before Mr Gower returned home to Australia. Mr Gower invited her to visit him in Australia.
(c)She had placed great faith in Ian and Elvira Barbour’s advice when applying for the two visitor visa applications. They were the only ones offering to help. She felt that she and Elvira were becoming close friends. She also thought Elvira Barbour understood how she felt and that she could rely on her advice. She imagined that if she came to Australia Elvira would become a close friend of hers.
(d)The Barbours told her not mention her relationship with Craig because they said she would never get a visitor visa if she did. She followed their instructions in relation to the first and second visitor visa applications and in the interview with the Department for her prospective marriage visa.
(e)She believed that she had to make the statements the Barbours had suggested in order for her applications to be successful. If she had known that as a result of her making false statements her applications for visas would be refused, she would never have made them. She has no criminal history and she deeply regrets making those statements to the Department.
(f)She earns on average $300.00 US a month. She lives modestly in order to make each pay last. Prior to September 2002 she had lived in a communal flat and had one room to herself. She was unable to have her son live with her there and he resided with her parents. It was difficult to live away from her son but she had no other options. In September 2002 Craig offered to pay rent for her own flat so that her son could live with her.
(g)If she were granted a visa to come to Australia she would like in the long run to help Craig, provide moral and financial help and look after the children. She admires and respects Craig in the way that he has been able to bring up the three girls. She loves Craig. The refusal of the visa has been devastating for her and Craig. She and Craig really need one another. She also feels very close to Craig’s three daughters. They call her mum. Craig has developed a caring relationship with her son.
(h)She is competent in English but in giving evidence before the Tribunal she felt nervous and partly relied on an interpreter to make sure that she understood everything that was said in order to answer the questions correctly.
15. The Tribunal also heard oral evidence from Craig Gower’s daughter, Kirsten Fay Gower. The Tribunal accepts that she was an honest witness and in particular accepts the following parts of her evidence :
(a)She and her sisters talk to Ms Lyadova once or twice a week and generally have a short conversation with her. Sometimes they e-mail each other.
(b)Kirsten and her sisters call Ms Lyadova, “mum“. She could not remember when she started to call her “mum “ but she just wanted to.
16. The Tribunal received into evidence a number of references favourable to Ms Lyadova, said to be provided by her friends, workmates and other members of her community.
17. The Tribunal also had available to it a large number of e-mails which had been sent to and from Mr Gower and Ms Lyadova.
18. It was submitted on behalf of the Respondent that Ms Lyadova does not pass the character test in section 501 of the Act because of the false and misleading information provided by her in relation to :
(a)Her two visitor visa applications made on 15 and 20 November 2001 where she declared she was travelling to Australia to visit Elvira and Ian Barbour in Brisbane, when her itinerary indicated she would be travelling to Cairns, and the failure on her part to disclose her relationship with the Applicant ; and
(b)In her Prospective Marriage visa application and interview she continued to state that she had filled out her previous visitor visa applications in a sincere manner.
19. In addition the Respondent contends that the Applicant’s excuse for providing false and misleading information to the Department (that she had relied on the advice of the Barbours) is not an acceptable explanation for that behaviour. It was submitted that this type of fraud is a class of conduct that is serious and the Tribunal should conclude that Ms Lyadova does not pass the character test.
20. In regard to the exercise of the discretion available to the Tribunal, it was submitted by the Respondent’s solicitor, that the Minister’s Direction (paragraph 2.6 (c)), specifies presenting false or forged documents or making false or misleading statements in connection with the entry or stay in Australia is considered by the government to be very serious.
21. The Respondent’s solicitor submitted that Ms Lyadova has shown a disregard for Australian laws and there is a real risk that she will not respect the law if she is allowed to enter Australia. In addition, the Tribunal should consider that in order to deter others from engaging in this type of conduct Ms Lyadova should not be rewarded with a grant of the prospective spouse visa.
22. It was also submitted on behalf of the Respondent that there are doubts as to the genuine nature of the relationship between Craig Gower and Anya Lyadova. That any possible hardship that may be suffered by Mr Gower in this case should be outweighed by the need to protect the Australian community and the integrity of the immigration system.
23. Counsel for the Applicant made the following points:
(a)Ms Lyadova is a decent person of good character. She has no criminal history nor has she engaged in any criminal activity. She presents no danger to the Australian public.
(b)She has admitted that she made false statements on her visa applications and she is genuinely remorseful and ashamed about that fact. She admits that she was inexperienced and foolishly trusted the Barbours even though she had misgivings about it at the time.
(c)She is educated, speaks good English and is currently employed. It is highly likely that she would be able to obtain employment in Australia.
(d)There is a genuine relationship between Craig Gower and Anya Lyadova that began in August 2001. The couple has demonstrated a genuine commitment to each other through their constant e-mails, telephone calls and overseas trips together.
(e)Mr Gower’s three children would suffer if the application was refused. The children have an expectation that Ms Lyadova will come and live with them and care for them as their mother.
(f)If it should be found that Ms Lyadova does not pass the character test in s.501(1) of the Act, nevertheless the Tribunal should exercise the discretion not to refuse the prospective spouse visa for all of the above reasons.
24. The Tribunal was referred to a number of cases in which applicants for visas had their applications rejected on the grounds of making false and misleading statements in their applications. However, the cases referred to involved extremely serious examples of false and misleading statements such as a false passport, false information about prior criminal convictions, working illegally whilst holding a tourist visa by using false names and using false tax file numbers, and falsifying an application for a protection visa.
25. The Tribunal does not intend to play down the seriousness of making false statements to government officials, but there are matters of degree. Some false statements may be far more serious than others. In the case of Ms Lyadova there was never any potential threat to the Australian public, and in fact the false statements were never acted on by the delegates of the Department.
26. One of the problems in this area is that there is really no sanction applicable to punish an applicant who makes false statements of this type, other than to refuse the visa on the ground that the person “is not of good character”.. It is really stretching the credibility of the decision making process to decide that any person who makes any false statement is not of good character. On the evidence available to the Tribunal, Ms Lyadova seems to be a perfectly decent person.
27. The Tribunal adopts the following passage from the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at 324 (paragraph 8).
“[8] Section 501 does not charge the decision maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with 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. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.”
28. The Tribunal finds that Ms Lyadova is not a person who is not of good character. She passes the character test.
29. The Tribunal also finds that even if the making of the false statements in her visa applications led automatically to the conclusion that Ms Lyadova was not of good character, she does not represent a threat to the Australian community and there would be significant compassionate considerations to justify the exercise of the discretion to not refuse to grant the visa.
30. The decision under review is set aside.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.
Signed: .......................................................................................
C. O’Donovan, Associate
Date/s of Hearing 29 July 2003
Date of Decision 19 December 2003
Counsel for the Applicant Mr P. Bickford
Solicitor for the Applicant McDonnells
Solicitor for the Respondent Blake Dawson Waldron
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