Guyler and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2004] AATA 194

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 194

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/700

GENERAL ADMINISTRATIVE DIVISION		)
Re		CATHRYN GUYLER

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date27 February 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) The Hon C R Wright QC

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visas – application for partner visa – visa applicant not of “good character due to past and present general conduct  – visa applicant falsified a visa to obtain employment in Australia – residual discretion to grant or refuse a visa application  – whether refusal of visa application would cause serious hardship  

Migration Act 1958 s501

REASONS FOR DECISION

27 February 2004 The Hon C R Wright QC

1.      This is an application to review a decision of the respondent’s delegate made on 9 August 2003 refusing to grant Darrell Michael Breetzke a subclass 309 Partner (Provisional) Visa (Class UF) for which he had applied on 21 February 2003.

2.      Breetzke, the visa applicant is a 32 year old South African national born in that country on 14 April 1971.

3.      On 23 July 2002 the visa applicant married Cathryn Guyler, the review applicant, an Australian citizen.

4.      The decision of the respondent’s delegate was made on the ground that she was not satisfied he was of good character because of his past and present general conduct. In particular she found that:

(a)In 1999 whilst the visa applicant was present in Australia on a sub-class 686 visitor visa, pursuant to which he was not entitled to work whilst present in this country, he had falsified a visa for the purpose of obtaining employment here; and

(b)The visa applicant had falsely stated in his application for the partner visa on 21 February 2003, that he had never held a Bridging Visa, whereas in fact he had been granted a Bridging Visa when the subclass visitor visa referred to in para a above was cancelled on 4 August 1999, to enable him to remain to make travel arrangements to leave Australia, which he did on 11 August 1999.

5.      On 21 August 2003 the review applicant applied to review the decision of the respondent’s delegate.  The application was heard in Brisbane on 10 December 2003.  Ms Julie Louie appeared for the review applicant.  Mr Mark Steele appeared for the respondent. Sworn oral evidence was given by the review applicant.  The visa applicant who is currently residing in South Africa gave evidence on affirmation by telephone.  Documentary materials consisting of (a) 16 written references as to the visa applicant’s character; (b) a copy e-mail as to job search; and (c) the Section 37 (“T”) documents, were also taken into evidence.

6. It was contended by the review applicant’s representative that an adverse finding under section 501 of the Migration Act 1958 (the Act) as to the visa applicant’s character should not be made, but I disagree.

7.      It was not disputed that the visa applicant had photocopied a friend’s work visa for the purpose of obtaining work in Australia.  This misconduct only came to light because departmental officers became aware that the visa applicant had received a tax file number and had obtained employment.

8.      The Federal Police were made aware of this offence but decided not to prosecute the visa applicant for falsifying a visa because he agreed to leave the country.

9.      The visa applicant was interviewed by Department Officers and admitted his offence.  I do not accept the submission that the offence was not serious because the police declined to prosecute.  The visa applicant’s conduct was, in my opinion, very serious.

10.     During his interview before deportation he manifested arrogance towards his interviewers and contempt for Australian Immigration laws.  He disclosed that he had worked for several companies in Australia and had held his last job for about 2 months.

11. I entertain no doubt that in accordance with principle and the policy and other considerations contained in the Minister’s Direction No 21 the visa applicant fails the character test. In reaching this conclusion I have considered the visa applicant’s professed reformation and maturity and the numerous glowing references tendered on his behalf, as well as his wife’s evidence. I have had occasion to make the observation, on previous occasions, that character issues under section 501 are concerned with the enduring moral qualities of the applicant, rather than the subjective assessments of friends, relatives, employers or others. Such material is relevant, of course, but will rarely be decisive.

12.     In reaching this conclusion I have given no weight to the applicant’s failure to disclose the Bridging Visa with which he was furnished in August 1999, when he applied for the partner visa, the subject of these proceedings.  It is possible I think, as the visa applicant claims, that he was unaware of the nature of the Bridging Visa at the time it was granted, and that his failure to disclose it in his later application was simply oversight on his part.

13.     The review applicant’s representative urges upon me that, in the event of making adverse findings against the visa applicant on the character issue I should exercise my residual discretion to waive the disqualifying effect of such findings.

14.     In considering this issue I have also had reference to the contents of the Minister’s Direction No 21.  Policy considerations in respect of the discretionary matters are dealt with in Part 2 para. 2.1 and following of the Direction: The relevant primary considerations to be taken into account are (a) the protection of the Australian Community; and (b) the expectations of the Australian Community. Additional considerations including hardship to the applicant, his spouse and family members must also be considered.

15.     In assessing the protection needs of the Australian Community it is appropriate to consider the potential risk posed in admitting the visa applicant.  This in turn calls in question the seriousness of the visa applicant’s conduct.  Within the policy guidelines (para 2.6(c)) the visa applicant’s conduct was plainly “very serious”.. There is no great risk of recidivism in my view but the general deterrence provided to other potential migration offenders by refusing a visa to the visa applicant cannot be overlooked.  In my view this is a very important consideration.  Offenders or potential offenders should not be encouraged to think that fraudulent or deceptive conduct in relation to migration matters will be lightly ignored if contrition is eloquently expressed.

16.     The expectations of the Australian community should be assessed against the assumed evaluation of reasonable members of the community with a full knowledge of the relevant facts and an understanding of the relevant issues.

17.     There are no children of either applicant whose interests need to be considered.  There is evidence, which I accept, that the visa applicant has matured considerably since 1999 and is now remorseful for the conduct which led to the cancellation of his visitor visa. The review applicant does not dispute that she was aware of her husband's immigration difficulties before they entered into their relationship.  The review applicant is aged 26 years and has qualifications as a social worker and has dual UK and Australian citizenship.  She has lived in Australia most of her life since the age of 8 and her family members and many of her friends live in Australia.

18.     The visa applicant and review applicant met in the United Kingdom in April 2000 and married there in July 2002 after spending some months together in South Africa.  The review applicant has a British passport.  The visa applicant worked in the telecommunications industry in the UK from September 2002 to August 2003.  Thereafter in September 2003 the applicants moved back to South Africa where the visa applicant secured part time work and the review applicant returned to Australia to attend the review hearing.  It is plain from the reference provided by the visa applicant’s father and mother (Exhibit 12) that they enjoy a good relationship with their son and daughter-in-law and would like them to live in South Africa near them.

19.     The applicant’s claim that South Africa is beset with social and racial tensions and there is constant danger of physical attack.  The review applicant also states that due to employment policy enshrined in South Africa legislation she would have difficulty in obtaining employment in South Africa.  She also doubts that her Australian qualifications would fit her for work in her chosen field of interest.

20.     Nonetheless I accept the respondent’s submission that there is nothing to stop the applicant’s continuing their married life either in the United Kingdom or in South Africa.  In my opinion there is no substantial foundation for concluding that refusal of the visa applicant’s application for a partner (provisional) visa will cause serious hardship to either applicant.  I do not accept that my residual discretion should be exercised in the visa applicant’s favour.  Consequentially the decision under review will be affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC

Signed:         K Donnelly.

Associate

Date/s of Hearing  10 December 2003 
Date of Decision  27 February 2004         

Solicitor for the Applicant          Ms J Louie, Nicol Robinson Halletts Lawyers
Solicitor for the Respondent     Mr M Steele, Blake Dawson Waldron Lawyers