Hegarty and Minister for Immigration and Multicultural Affairs - [2001] AATA 421

DECISION AND REASONS FOR DECISION [2001] AATA 421

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/956

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CATHERINE HEGARTY
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date18 May 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant and that his visa application be reconsidered in an expedient manner.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa refusal – whether applicant of good character – immigration fraud – whether discretion should be exercised in visa applicant's favour – consideration to be given to unborn child of applicant.

Migration Act 1958 ss 501
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Ly v Minister for Immigration and Multicultural Affairs [2000] AATA 339

REASONS FOR DECISION

18 May 2001 Deputy President DP Breen, Presidential Member

This was an appeal against a decision by a delegate of the Minister for Immigration and Multicultural Affairs dated 24 August 2000 to refuse a Temporary Partner (Provisional) Class UF (Subclass 309 – Spouse) Visa to Mr Bautista Simon Barrientos Roca. The applicant in these proceedings is Mr Barrientos' wife, Ms Catherine Hegarty.
The matter was heard by me in Brisbane on 13 February 2001. The applicant was represented by Ms A Kemenes, Migration Agent of Four Corners Migration Consultancy. The respondent was represented by Mr H Copley, Solicitor of Messrs Blake Dawson Waldron. Written submissions were received from the applicant on 2 March 2001 and from the respondent on 14 May 2001.
Oral evidence was received from the visa applicant, the applicant and the applicant's mother Mrs Janette Mary Hegarty. The following documents were also taken into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Medical documents from Dr Choong and Dr Theodoros
Exhibit 3 Bundle of documents from the applicant

Mr Barrientos, the visa applicant, is 31 years of age and a Peruvian citizen. He has two children to a former partner who reside in Peru. In 1993 Mr Barrientos paid $US50,000 to obtain a birth certificate in the name of Jose Luis Yonkura Salas. At that time the Japanese Government had a policy that if a Peruvian had a grandparent or a great grandparent who was of Japanese birth, then the person would be able to obtain a long stay working permit. Mr Barrientos wanted to go to Japan as there were better work opportunities there. He would not have been able to obtain the work permit under his own name as non-Japanese people had to have a university degree in order to get a work permit. In May 1993 Mr Barrientos obtained a passport under the alias and travelled to Japan in June of that year. Mr Barrientos lived and worked in Japan under the alias until mid-2000.
Ms Hegarty, the applicant, is also 31 years of age and is an Australian citizen. She married a Japanese man in Australia and in 1994 returned to Japan to live with him. They subsequently divorced in December 1998. The applicant met the visa applicant in February 1998 in Japan. She said that while she knew him by his Japanese name, she also knew that all his friends called him Simon. The applicant and the visa applicant commenced a relationship in August 1998. In December 1999 the applicant and the visa applicant visited Mr and Mrs Hegarty in Australia. The visa applicant travelled to Australia under his alias. On 7 February 2000, Mr Barrientos told the applicant about his alias and they decided to return to Peru so that he could obtain a birth certificate in his real name and get married. It was also an opportunity for Ms Hegarty to meet Mr Barrientos' family and understand his culture. They married in Peru on 7 June 2000. Shortly thereafter, Ms Hegarty and Mr Barrientos lodged forms for a spouse visa for Mr Barrientos. In those forms Mr Barrientos declared his alias and told the Department that he had destroyed the birth certificate and passport under that name.
The visa application was refused under Section 501 of the Migration Act 1958 on the grounds that the visa applicant lacked good character due to his past and present general conduct.
This Tribunal must determine whether the visa applicant fails the character test and if he does, whether the discretion under Section 501 should be exercised in his favour. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to these considerations.
The provision of false information on immigration forms, the use of false documents with respect to immigration and generally engaging in breaches of immigration law are all activities listed under the Direction which may lead to a finding that a person is not of good character. It is important that people provide correct details of their identity to immigration authorities so that the authorities are aware of exactly who it is that they are letting into the country. While the use of a different identity, which does not involve the covering up of previous illegal activity, is not indicative of character flaws as serious as those indicated by persons engaged in rape, murder, drug trafficking or terrorism, it is still of concern to authorities. The use of a false birth certificate to gain a new identity shows a level of dishonesty which creates a concern as to a person's enduring moral qualities (see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422). The fact that the visa applicant persisted with the false identity for so long compounds the matter. Therefore, it is this Tribunal's finding that as a result of the immigration fraud perpetrated by the visa applicant, under Section 501 he fails the character test.
The Tribunal must then consider whether the discretion should be exercised in the visa applicant's favour. There are three primary considerations under the Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.
Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature of the seriousness of the crimes committed, the risk of recidivism and the general deterrence effect that the cancellation of the visa will have on other non-citizens.
With respect to the seriousness and nature of the offences, the Direction provides that immigration fraud is to be viewed as serious and the Tribunal agrees with that view. However, in this case the applicant did not engage in this deception in order to obscure past illegal conduct or to evade creditors and the like. It was simply done to enable him to work in another country. The visa applicant did not chop and change identities. As such, any activities he engaged in during those seven years were directly referrable to him. Although he did travel to Australia under that alias, his explanation was that he only had travel documents in the alias so that he was unable at that time to travel in is own name. Finally, there is no evidence that the visa applicant committed any criminal activity under that alias. He in fact worked hard, paid maintenance for his children, paid taxes and was otherwise a positive member of the community in which he lived. All of these factors reduce the seriousness of the conduct engaged in, although only marginally.
Considering then the risk of recidivism. The respondent has submitted that the past conduct of a visa applicant is the best indicator of their future conduct. This is a view with which the Tribunal agrees. While Mr Barrientos did use a false identity to gain entry into Japan, his conduct whilst there was extremely good. He did not breach other laws, he paid his taxes and even purchased his own health insurance rather than relying on State benefits. Whilst in Australia he did not engage in any criminal conduct or breach any other laws except, of course, in relation to the application for the visa. As such, the Tribunal is of the view that there is a very minimal risk that the visa applicant, if permitted to come to Australia, would disregard other Australian laws.
With respect to the breaches of immigration law, the visa applicant is now very aware, as a result of these proceedings, that he must at all times be honest with immigration authorities about the information he is disclosing. The Tribunal notes that the visa applicant decided of his own volition to abandon the alias and to declare the previous use of it to the authorities when he applied for the spouse visa. As such, the Tribunal also views the likelihood of the visa applicant further transgressing against Australia's immigration laws as minimal.
On the issue of general deterrence, the Tribunal is of the view that this consideration should be given marginal weight as the visa refusal is not likely to be widely published. There was no evidence to suggest there is a wide-spread practice of Peruvian's coming to Australia on false passports, making this factor less of a concern.
The second primary consideration is the expectations of the Australian community. These expectations are that a non-citizen will obey Australian laws. Where there is a risk that this trust will be breached or the crime which the person is convicted of is so abhorrent, it may be appropriate to refuse the visa.
As stated above, the Tribunal is of the view that the visa applicant is most likely to abide by Australian laws if he is permitted entry to this country so that the trust of the Australian community is not likely to be breached. While it is acknowledged that the community would not expect a person to be rewarded for their fraud on the Immigration Department by the granting of a visa, the visa applicant's conduct has not been so abhorrent that community expectations would mandate the refusal of the visa. Given the social and political circumstances surrounding the applicant's use of the false documents, there would be some understanding by the Australian community of the visa applicant's actions.
The final primary consideration is enlivened in this case as the applicant has two children from his previous relationship who reside in Peru. It was not disputed that the visa applicant has had limited contact with these children as he was living in Japan for most of their lives. Therefore, it cannot be said that the children would be greatly deprived of their father figure if the visa were granted. The children may in fact benefit a little from the visa applicant relocating to Australia as his ability to get work and so pay maintenance would be higher than if he stayed in Peru. It is the Tribunal's view that the interests of these children are not such as to either assist or hinder the visa applicant in the gaining of the visa.
The applicant, Ms Hegarty, is currently pregnant with the visa applicant's child. Following the reasoning in the case of Ly v Minister for Immigration and Multicultural Affairs [2000] AATA 339, an unborn child is not considered a "child" for the purposes of the Direction. Therefore, the rights of the unborn child are a secondary consideration.
It is the Tribunal's view that the primary considerations are fairly balanced. There are a number of secondary considerations which must also be taken into account, although one on its own cannot outweigh a primary consideration. The pertinent considerations are as follows:

(a)the extent of disruptions to the non-citizen's family, business and other ties to the Australian community;
(b)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(c)genuine marriage to an Australian citizen;
(d)family composition of the non-citizen's family, both in Australia and overseas;
(e)evidence of recent good conduct or rehabilitation;
(f)whether the application is for a temporary visa or permanent visa; and
(g)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances.

The visa applicant has a father, brothers and a sister who reside in Peru. His former partner and his children also reside in Peru. He is qualified as a welder and has found work difficult to obtain in Peru. However, he should be employable in Australia. He currently has no business ties in Australia. Mr Barrientos is in a genuine marriage with the applicant, Ms Hegarty. Being separated from her is causing him significant emotional hardship.
If Ms Hegarty remains in Australia she will be separated from her husband and be forced to bring up her child as a single parent. This will cause her both emotional hardship and financial hardship as she will not have her husband's support both emotionally and financially while she is raising the child. If Ms Hegarty chooses to relocate to Peru, she will also suffer emotional and perhaps financial hardship. Her parents reside in Australia and their inability to visit Peru to see her would cause her severe emotional hardship as she would not be able to travel as much to visit them with a small child. She does not speak Spanish very well and this may impact upon her ability to gain employment as a teacher in Peru.
The standard of medical care, education and the general standard of living is not as high in Peru as it is in Australia. This is of more concern for Ms Hegarty who has had an allergic reaction to an insect bite recently and who is pregnant and considering the well-being of her baby. The Tribunal accepts that there is limited evidence with respect to the ongoing threat to Ms Hegarty's health with respect to insect bites in the future. However, the Tribunal accepts her evidence that from her observations the standard of health care is significantly lower than in Australia. Her child, when born, whether born in Australia or not, will have the right to Australian citizenship which carries with it a right to permanent residence. As such, it is open for the Tribunal to consider how the child's future would be affected if the visa were not granted. It is trite indeed to say that the child would have a better standard of living in Australia than in Peru.
As stated above, the visa applicant made the decision to abandon the alias himself and declared all of the information to the immigration authorities upon his application for a spouse visa. The Tribunal does acknowledge, however, that the recent good conduct is fairly recent.
The visa sought is a temporary one. Presumably, however, the visa applicant will ultimately apply for permanent residence here. It is the Tribunal's view that the granting of the temporary visa would give the immigration authorities the perfect opportunity to observe the visa applicant's conduct within this country and to assess the extent of his reformation. If they are not happy with his conduct at the expiration of the temporary visa, they simply do not renew the visa or grant another one.
The Tribunal finds that the secondary considerations are strongly weighed in the visa applicant's favour due to the hardship which would be caused to the visa applicant, the applicant and their unborn child by the failure to grant the visa. As the primary considerations are fairly balanced and the secondary considerations are weighed in the visa applicant's favour, the discretion should be exercised in the visa applicant's favour.
Accordingly, the Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant and that his visa application be reconsidered in an expedient manner.
I certify that the 26 preceding paragraphs are a true copy of
the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  13.2.01
Written Submissions                14.5.01
Date of Decision  18.5.01
Rep. for the Applicant              Ms A Kemenes, Migration Agent
Solicitor for the Respondent    Mr H Copley, Messrs Dawson Blake Waldron