Hernandez and Minister for Immigration and Multicultural and Indi Genous Affairs
[2003] AATA 977
•30 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 977
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1646
GENERAL ADMINISTRATIVE DIVISION, SYDNEY REGISTRY ) Re JAIME HERNANDEZ Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date30 September 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a spouse visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Myryan Rengifo Simbana. ...............................................
Deputy President
CATCHWORDS
IMMIGRATION - provisional spouse visa - character test - false and misleading statements and conduct - not of good character - whether discretion should be exercised in Applicant's favour - primary considerations - protection of Australian community - seriousness and nature of conduct - risk of recidivism - general deterrence - expectations of Australian community - other considerations – decision set aside
LEGISLATION
Migration Act 1958
Ministerial Direction Number 21
CASELAW
Schmarakova case
Abdul-Kader and Minister for Immigration and Multicultural Affairs [2000] AATA 1055
REASONS FOR DECISION
September 2003 MR J BLOCK, DEPUTY PRESIDENT PART A – PRELIMINARY AND GENERAL
1. The decision under review in this matter is the refusal dated 8 January 2002 of a Partner (Provisional) (Class UF) Subclass 309 Visa applied for by Myryan Rengifo Simbana (“the Visa Applicant”); that application was sponsored by her husband, Jaime Hernandez (“the Applicant”). The Tribunal notes that the correct surname of the Applicant is Hernandez and not Campos as appears in some relevant documents.
2. Mr C Jackson of Counsel, instructed by Roach Halligan, Solicitors, appeared for the Applicant while Mr Ishan Muthalib of Blake Dawson Waldron Solicitors appeared for the Respondent.
3. The Tribunal had before it both T documents and supplementary T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975; references preceded by “T” should be treated as reference to the T documents while references preceded by “S” should be treated as references to the Supplementary T documents. The Tribunal also accepted exhibits as follows:-
· Exhibit A1 is the Applicant’s Witness Statement dated 26 June 2003;
· Exhibit A2 is a Statement by Maria Parides dated 13 May 2000;
· Exhibit A3 consists of a batch of medical documents and including reports by Doctors Summerville and Porta;
· Exhibit A4 is a document marked “Confidential” addressed to “To Whom It May Concern” by the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors;
· Exhibit A5 is a batch of documents headed “Tender Documents”, which can broadly be classed as references or recommendations, numbered one to ten (both numbers inclusive) and being documents as follows:-
“1. Reference of Padre Jesus Mosquera, dated 26 February 2003;
2. Reference of Lisa Fernando Proano Munoz, dated 26 February 2003;
3.Statutory declaration of Mr Hugo Cesar Nardini, dated 11 December 2002;
4. Statutory declaration of Mr Angel Portas, 2003, otherwise undated;
5.Statutory declaration of Mr Rodrigo Hernandez, dated 17 January 2003;
6. Affidavit of Juan Hernandez, dated 20 December 2002;
7. Letter of Solange Hernandez, dated 25 October 2002;
8. Letter of Christian Hernandez, dated 20 November 2002;
9. Statutory declaration of Elizabeth Rivers, dated 20 January 2003;
10. Letter of Paul Lynch, MP, dated 17 January 2003”.
· Exhibit A6 is a witness statement in respect of the Visa Applicant dated 23 May 2003;
· Exhibit R1 is the application by the Visa Applicant for the review by the Refugee Review Tribunal (“RRT”) of the refusal of her protection visa application made on 20 May 1997;
· Exhibit R2 is a letter by the RRT to the Visa Applicant dated 17 November 1997; and
· Exhibit R3 is a statutory declaration by Irene Darby principal migration officer at the Australian Embassy in Santiago;
4. There are two matters of a preliminary nature which can conveniently be dealt with at an early stage. Mr Muthalib advised the Tribunal that there was no issue as to the genuineness of the marriage; accordingly, some of the references included in Exhibit A5 are of limited or marginal reference, in particular in so far as they seek to speak as to the genuineness of the marriage. One of those references is by Paul Lynch, State MP for Liverpool, which specifies that the Applicant is a frank and honest person; it must be remembered that it is the character of the Visa Applicant which is in issue in this matter. The last sentence of Mr Lynch’s reference testifies (in a manner which is totally hearsay) as to the legitimacy of the marriage. The Tribunal questions how Mr Lynch was able to give such a reference as to his knowledge of the Applicant, unless Mr Lynch speaks Spanish, because the Applicant has very little English. The second issue relates to the Visa Applicant’s protection visa applications; the Tribunal refers in this context both to the original protection visa application and also the application to the RRT for the review of the refusal of the original application. Mr Muthalib advised the Tribunal that the Respondent does not contend that the protection visa applications were false and misleading and, accordingly, it was thus not contended on behalf of the Respondent that they were in breach of section 234 of the Migration Act 1958 (‘the Act”).
5. In essence, the Visa Applicant claimed that she was a refugee because of the aggressive attitude towards her of her former husband and his defacto partner. That application failed on the basis that it did not disclose that she was a refugee in any relevant convention sense. It should be noted also that the Visa Applicant made her application within a short time after she first arrived in Australia as a tourist. Her application having been dismissed, she sought the review of that refusal by the RRT. Her application to the RRT (Exhibit R1) was prepared by Melany Ramos, who described herself as a community worker and is referred to in these reasons as Ramos. In that application, the Visa Applicant said:
“I know that my case is not under the 5 main reason of the U.N. convention however my persecution is deeply connected with humanitarian reason. I had suffered persecution by my husband and his defacto. So applied under humanitarian reason, I considered myself as a victim of Domestic Violence. Please let me to have an interview with you in order to explain you my fear of persecution”.
Put in order words, the Visa Applicant made it clear that while she knew that she did not fall within any of the recognised grounds she sought an opportunity to meet with the RRT in order to clarify her position. In that application, she cited as her address for service her home address, being 171 Prairevale Road Bossley Park.
The RRT by letter dated 17 November 1997 (Exhibit R2) invited her to attend. She said in her evidence that she did not receive that letter, having moved from the address cited as her address for service. However, she did not advise the RRT of the fact that her address had changed. She said that she did not receive the RRT letter. As to whether that statement was true may be doubted having regard to the quality of her oral evidence, which is referred to in more detail later in these reasons. The succinct point to be made is that she knew she was not a refugee and sought an opportunity (which she did not accept) to be heard.
6. The Tribunal was advised by the representatives of the parties that there is recent hackled authority (although the case authority was not cited) to the effect that domestic violence can be sufficient to invoke refugee status where the police refuse to act. That authority is recent, and, in any event, there was scant reference as to police inaction. Indeed, Exhibit A5 includes a reference by the police in Ecuador.
7. In Abdul-Kader v Minister for Immigration Multicultural and Indigenous Affairs [2000] AATA 1055, Deputy President McMahon said in paragraph 19 of his decision:
“19. The fact that an applicant is unsuccessful in his application for a Protection Visa, is no reflection on his character, provided he tells the truth. The fact that he sees the exercise of his supposed legal rights as a way of staying in Australia, is not inconsistent with good character, provided he tells the truth. I am satisfied that the truth has been told and that there is therefore no basis for the somewhat exaggerated language of the delegate. The decision under review rests on a misunderstanding of notes in a case dump. The evidence before me indicates that it cannot be supported.”
That statement has since been cited with approval on a number of occasions. In the matter of Re Schmarakova and Minister for Immigration and Multicultural and Indigenous Affairs, where the decision will be published contemporaneously decision, this Tribunal said in clauses 16 to 19:
16. In Abdul-Kader and Minister for Immigration Multicultural and Indigenous Affairs [2000] AATA 1055, Deputy President McMahon said in clause 19 of his decision:
“19. The fact that an applicant is unsuccessful in his application for a Protection Visa, is no reflection on his character, provided he tells the truth. The fact that he sees the exercise of his supposed legal rights as a way of staying in Australia, is not inconsistent with good character, provided he tells the truth. I am satisfied that the truth has been told and that there is therefore no basis for the somewhat exaggerated language of the delegate. The decision under review rests on a misunderstanding of notes in a case dump. The evidence before me indicates that it cannot be supported.”
17. The import of that decision suggests that an applicant in the exercise of a legal right to do so is entitled to apply for a protection visa even though her or his motives for doing so are to gain time, provided that she or he tells the truth. Taken at face value, that decision would suggest that an applicant is entitled to bring such an application and perhaps even appeal a refusal to the Refugee Review Tribunal so long as the grounds stated in the application are true. It is possible to infer from that statement by Deputy President McMahon that such application does not breach the Migration Act 1958 (“the Act”) even though an applicant knows that he is not in truth a refugee, or has received advice from a migration agent that he is not a refugee within the provisions of the relevant convention. Taken literally, an applicant who tells the truth is entitled to make applications which are, from the outset, hopeless, in order simply to gain time. On this basis, the fact that the time and resources of the respondent and the Refugee Review Tribunal are wasted would appear not to matter.
18. I am not at all sure that that statement by Deputy President McMahon (subsequently cited in other decisions) should be treated as, in all respects, correct. I think that it is more than likely that a distinction should be drawn between a weak case which an applicant is entitled to pursue, and a hopeless case which in my view might be treated as falling within a different category. The distinction to be drawn between these two classes of case will perhaps be difficult in some, but by no means all, cases.
19. Although decided in a different context, the recent Federal Court decision of Australian Securities and Investments Commission v National Exchange Pty Ltd [2003] FCA 955, is indicative of the fact that a document can be true on its face and yet nevertheless misleading.
8. In this case, the Visa Applicant, having come to Australia as a tourist, stayed on in Australia for a number of years thereafter. As will be demonstrated when her evidence is reviewed later, her statements that she came as tourist to visit her sick brother cannot be accepted. On the contrary, the evidence before the Tribunal points overwhelmingly to the fact that, from the outset, she came in order to stay and improve her financial position. Since her return to Ecuador, there has been no adverse action against her, although this may be due to the fact that the de facto partner of her former husband is apparently no longer a threat.
In summary, the context in which the original protection visa application was made, and, after its dismissal, appealed to the RRT leads the Tribunal to conclude that the Visa Applicant did not at any stage believe that she was a refugee and that her application was motivated solely by a desire to gain time, a design in which she succeeded for a number of years.
Were it not for the fact that the Respondent did not contend that her protection visa applications were in breach of section 234 of the Act, the Tribunal would be of the mind to hold that they were; even if the original application was not in breach of section 234 of the Act, on the basis of Abdul-Kadar (supra) (assuming that paragraph 19 of that decision should be accepted at face value), the subsequent appeal to the RRT was, in the Tribunal’s view, in breach. This is so because the Visa Applicant’s application made it clear that she knew that she was not a refugee but sought merely a right to a hearing. That she did not follow through with that request and did not attend a hearing is consistent with this approach.
It would, however, be a breach of natural justice if the Tribunal were to hold that the protection visa applications were in breach of the Act, simply because the Respondent has not so contended. This must of necessity have a bearing on my consideration of her conduct, even though, as the Tribunal has noted, it cannot hold that the protection visa applications constituted a breach of section 234 of the Act.
The Tribunal will revert to these aspects when it deals with the Visa Applicant’s evidence.
9. The Respondent’s Statement of Facts and Contentions dated 2nd July 2003 contains the usual helpful chronology of recent events. Included in these reasons is clause 3, which contains the chronological summary, clause 8, clause 8.1 and clause 12 only, and which read as follows:-
“2. FACTS
3.The references given are to pages of the section 37 Tribunal documents (T..:p...) and Supplementary section 37 Tribunal documents (S..:p...).
Date
Event
Reference
29/10/96
Ms Simbana is granted a subclass 676 Tourist visa valid for 3 months stay.
T:p103
26/11/96
Ms Simbana arrives in Australia and is able to lawfully remain in Australia until 26 February 1997.
T:p103
28/01/97
Ms Simbana applied for a Protection visa.
T5:p40
28/01/97
Ms Simbana was granted on that day a Bridging visa A (BVA).
T14:p117
19/04/97
Protection visa application refused by a delegate of the Minister.
T5:p45-48
20/05/97
Ms Simbana applied to the Refugee Review Tribunal (RRT) for review of that decision.
T7:p51
15/12/97
The RRT affirmed the refusal decision.
T7:p49 - 55
19/01/98
The date Ms Simbana's BVA expired.
20/01/98
Ms Simbana became an unlawful non-citizen.
15/07/00
Ms Simbana married her current sponsor, Mr Hernandez Campos, whilst she was an unlawful non-citizen.
T8:p56,66
20/01/98 to 5/11/00
The period of time Ms Simbana was an unlawful non-citizen.
T14:p117
6/11/00
Ms Simbana granted a Bridging visa E under the assurance she would depart Australia before 12 November 2000.
T14:p117
12/11/00
Ms Simbana departed Australia.
T14:p117
17/11/00
The Spouse visa application was lodged.
T8 & T9
29/06/01
Ms Simbana attends an interview with Principal Migration officer, Irene Darby in Quito.
T16
08/01/02
Notice of Intention to Refuse under s501 of the Act sent to Ms Simbana.
20/09/02
The Spouse visa application was refused on character grounds by a delegate.
T2
31/10/02
Application fore review lodged with the Tribunal.
T1
4..
…
Past General Conduct
(a) Making false and misleading declaration in Passenger card
8.(I) Ms Simbana declared her marital status as “married” on her passenger arrival card dated 25 November 1996 (T14,p118) when she in fact had been separated from her previous husband since 1992 (T16,p.121), the card gave her the option of “separated but not divorced” [S1:p1] and in her Protection visa application of 28 January 1997, she stated that she was separated from her spouse and stated her date of separation was October 1991 [S2:p3].
(ii)stated in her passenger card that her intended length of stay was one month “(T14,p118) but at interview she stated that she had planned to stay in Australia for about a year (T16,p121).
(b)Obtaining a Tourist visa to enter Australia for non-tourist related purposes
8.1The respondent contends that Ms Simbana never intended to be a genuine tourist in Australia and obtained a Tourist visa merely to enter Australia in order to find employment and earn money. This contention is based on the following admissions made by Ms Simbana at her interview on 29 June 2001, which are recorded in the interview record [T16:p122]:
(i)Interviewer: “Did you travel to Australia on a Tourist visa?”
Ms Simbana: “Yes, I travelled on a Tourist visa.
(ii)Interviewer: “How long did you plan to stay in Australia?”
Ms Simbana: “I planned to stay in Australia one year.”
(iii)Interviewer: “Was your primary reason to travel to Australia to find employment and earn money while you were there?”
Ms Simbana: “Yes it was as I had to support my children and the financial situation in Peru is too bad.”
(iv)Interviewer: “When you travelled to Australia, what was your intention at that time?”
Ms Simbana: “I went to Australia to change my life because my marriage had ended. To improve my financial situation, mainly to do this as I had to support 2 children. I needed to improve my children’s situation”..
Present General Conduct
(a)Making false and misleading statements in his provisional spouse visa application
12.In the current application for a provisional Spouse visa, Ms Simbana made a declaration in support of her application which was false and misleading:
(a)Ms Simbana declared in her Application for Migration to Australia by a partner, (T9,p87) that she has never previously been married or been in a defacto relationship.
However, at the interview, Ms Simbana claimed that her agent completed the form (T16,p122).
The Respondent contends that this evidences Ms Simbana continuing practice of misleading the Department and not taking responsibility for her actions.
10. In the interests of balance, the Applicant’s Statement of Facts and Contentions dated 4 July 2003 is included as follows:-
“Applicant’s statement of facts and contentions
Facts
1.These submissions have been prepared with the benefit of the Respondent’s statement of facts and contentions. The applicant does not dispute the chronology outlined in the Respondent’s statement of facts and reasons, and the facts below should be considered in the light of that chronology.
2.The visa applicant (“Mrs Hernandez”) originally came to Australia principally because her brother, Jorge Renfijo, who is an Australian permanent, and was living in Australia in 1996, was seriously unwell following a heart operation (statements of Jorge Renfijo, and Mrs Hernandez, May 2003).
3.A secondary reason for her wanting to come to Australia was the horrific treatment she had received, over many years, at the hands of her now ex-husband, whose harassment and ill-treatment of her had continued after her separation from him (statements of Mrs Hernandez and Jorge Renfijo).
4.When she arrived in Australia, she did not have a precise time-frame for her stay in mind, but she did not intend to over-stay her visa (Mrs Hernandez, para 13). She did not intentionally give any false information on her incoming passenger card, which was filled out with the assistance of a fellow passenger on her air-craft (Mrs Hernandez, para 14).
5.Mrs Hernandez provided care and companionship to her brother when she arrived in Australia.
6.Mrs Hernandez applied for a protection visa in good faith, on the basis of migration advice received by a migration agent (Mrs Hernandez, para 18-19).
7.She was advised that she was allowed to work following the filing of that application, she obtained a tax file number, and she worked legally (Mrs Hernandez, para 21).
8.Mrs Hernandez met the Applicant for review (“Jaime Hernandez”) In December 1997 (Mrs Hernandez, para 22, Jaime Hernandez, statement of 26 June, 2003, para 2).
9.Mrs Hernandez acknowledges that she remained in Australia after the time that she no longer had a valid visa, and that she continued to work, which was at a time after she had met Mr Hernandez, but before she began an intimate relationship with him.
10.Mrs Hernandez and Jaime Hernandez entered into an intimate relationship from May 1998 (Mrs Hernandez, para 25, Jaime Hernandez, para 4).
11.Jaime Hernandez was not aware of Mrs Hernandez’s immigration status until he proposed to her birthday, 22 May 2000, when he proposed to her. It was after her proposal that she revealed her illegal status (Jaime Hernandez, para 6).
12.Mrs Hernandez and Jaime Hernandez were married on 22 July 2000 (T documents (“T”)8: p56, 66).
13.Mrs Hernandez left Australia on a voluntary basis on 12 November 2000.
14.Jaime Hernandez and Mrs Hernandez remain in regular contact by phone and mail (Jaime Hernandez, para 22, Mrs Hernandez, para 35).
15.Jaime Hernandez’s health is seriously effected by the absence of his wife (Jaime Hernandez, para 25, statement of Mr Angel Portas, May 2003, para 9-10).
16.Mrs Hernandez regularly attended the Saint Speleopa Catholic Church while in Australia, and performed voluntary work for that Church (Mr Portas, para 5). She also provided assistance to the charity, Amigos del Hogar de Cristo Incorporated (T 257
17.Mrs Hernandez has continued to perform voluntary work on her return to Ecuador.
18.The marriage between Mr and Mrs Hernandez is genuine, and continuing.
Contentions.
Not of bad character.
19.The conduct of Mrs Hernandez is not of sufficient gravity to demonstrate that she is of bad character: in particular, there is no convincing evidence of immigration fraud in this case.
20.Even if the Tribunal does not consider that to be so, if the Tribunal considers the character of Mrs Hernandez as a whole, including evidence of good character, and including her decision to return to Ecuador and regularise her immigration status, and her voluntary work, an overall assessment of Mrs Hernandez’s conduct, good and bad, indicates that she is not of bad character.
Exercise of the discretion.
21.Even if the Tribunal were to find that Mrs Hernandez is not of good character, the Tribunal should exercise its discretion to grant the visa for the following reasons;
1.Mrs Hernandez voluntarily submitted to the law and left Australia. Allowing her, after due consideration of all of the circumstances surrounding her application, to return to Australia is in the interests of the Australian community, because it encourages other to regularise their immigration status, rather than simply wait to be apprehended.
2. Jaime Hernandez was not aware of Myrian Hernandez’s immigration status at the time that he formed a relationship with her, he has already suffered greatly physically and emotionally from her absence, and his love for her is palpable.
3.Mrs Hernandez’s brother is also effected by her absence, and the hardship that he will suffer if she is not allowed to return to Australia, should also be considered by the Tribunal.
4.Mrs Hernandez would also suffer significant hardship in being separated from her husband, to whom she is genuinely attached, and whom she loves.
5.Mrs Hernandez has strong community ties in Australia.
6.When the factors in favour of Mrs Hernandez’s being granted the visa are weighed against the gravity of the conduct in this case, the preferable decision is that the visa be granted”.
11. In respect of both the Applicant and the Visa Applicant, their evidence-in-chief consisted in large part of their affirmation of the truth of their witness statements, being Exhibit A1 in the case of the Applicant and A6 in the case of the Visa Applicant. These statements have been reproduced below:-
- Witness Statement [of Applicant]
1.My name is Jaimie [sic] Hernandez. I was born on 16 October, 1941, and I live at 4/18 Goulburn Street, Liverpool, in the State of New South Wales.
2.I met Myrian on 26 December 1997, at the Marconi Club. At that time, I was involved with a group of musicians called Pandoras, and Myrian was there. I liked the look of her, and from that day, we started to have a very good friendship.
3.We rang each other by phone, we met in the city, and we met at the Marconi Club again.
4.On 22 May, 1998, George had a party to celebrate Myrian’s birthday, and he invited me. I went to his place, and it was too late to go home by train to Liverpool, and I asked Myrian if she wanted to stay with me that night at a hotel in the city.
5.After that we became boy-friend and girl-friend, and we saw each other every day. We saw each other generally in the city, walking around, we would go to Chinatown for lunch or dinner. Always she would go to my place, in Liverpool, where it was private.
6.On 22 May 2000, not long before the Olympics, and on her birthday, I asked Myrian to marry me. We were at my home, and it was a Sunday, about noon.
7.I proposed to Myrian on her birthday. We were at my home, and it was a Sunday, at about noon.
8.We were in the kitchen, sitting on two stools in the kitchen, when I asked her, she started to cry.
9.I said “You like me as a woman and a friend, and I would like to live with you for the rest of my life, because I am alone. I would like to get married with you.”
10.She didn’t say anything, she just cried.
11.I thought at that moment, I didn’t like her. I thought that she was going to refuse me.
12.Then she said “Jaime, I have to tell you something. Jamie [sic], at the moment I am illegal. I went to talk to Mr Alexandrou, and he told me that I am illegal in Australia”..
13.I thought a moment, and said “Is that the main reason to get married with me?” Up until that time, she had not told me about any of her problems with immigration.
14.She said “No”.
15.She was still crying and crying and crying. After, she told me, “I never thought you would want to marry me, if you know that I am illegal in this country”.
16.After crying she said “yes”. When she agreed to get married with me, she moved in with me. She moved in with me about a week later. She arrived at Liverpool station with all of her luggage and we went to my place.
17.I said “I am going to ask advice from someone to see how we can fix that problem”.
18.The day after I went to talk to a celebrant I knew, Mr Ardnt.
19.We were married on 15 July 2000.
20.Mr Alexandrou was in charge of Myrian’s case. Mr Alexandrou advised that it was better that Myrian leave the country. The paperwork had to be done in the right way from Myrian’s country.
21.Myrian left on November 12, 2000. I went to the airport with her. At the moment, I felt very sad, but I thought that it would only be for 8 or 10 months, not three years.
22.I send her letters, postcards, some poems, I make a lot of phone calls, and we try to maintain a good relationship by phone but it is never the same.
23.I send her money.
24.Sometimes through the month, she is not very well, and after talking with me, she is worse, because she suffers from stress, and migraines, and when it is her period it is a terrible time.
25.I feel very bad, and sometimes I have an epilepsy attack, when I get stressed. I had an attack just last week, and I was very bad.
26.When she cries, it can set me off.
27.I don’t answer the phone.
28.My health is getting worse by the day. Even with the medication, I have attacks, even though the doctor told me that the medication should protect me.
29.I knew that she was illegal here, but I accepted that Myrian should leave this country, because I thought we should do it the right way, and that she should come back to Australia the right way.
30.I love her very much, and it would mean the world to me if I could spend my remaining days with her here in Australia.
[signed] Jaime Hernandez
26 June 2003”
“Witness Statement [of Visa Applicant]
1.My full name is Myrian De Las Mercedes Hernandez.
2.I was born on 22 May, 1958, in Quitto, Ecuador, where I currently live.
Reasons for coming to Australia.
3.In about May, 1996, I was living in Quitto. My brother, Jorge Renfijo, rang from Australia, which he had travelled to in 1995, and said;
“I am very sick, I have a problem with my heart, I have to have an operation, and after that I need someone to look after me”.
4. I said:
“I will do everything I can to go to come to Australia to look after you, as soon as I get my papers, I will come”.
5.I wanted to save some money before I applied for a visa. I applied for the visa in September 1996. The visa was a tourist visa.
6.There were two main reasons why I wanted to go to Australia. First, I wanted to visit my brother, and second, I had a lot of problems with my husband in Ecuador, from whom I was separated.
7.Over the years of my marriage, my husband abused me, verbally, physically, and sexually. I suffered blows to every part of my body.
8.I was living in a separate house on the same property as my brother, Jorge, in Ecuador. Often, my children would run to Jorge’s house when I was being assaulted, and he would intervene on my behalf.
9.After he left, in 1991, he would come back to the home from time to time, and he would be very violent. His new wife was also violent.
10.I felt that my presence also meant that my children were at risk, and that they would be safer if I wasn’t there.
11.In 1995, the problems were so severe that I went to the police.
Arrival in Australia.
12.I travelled over to Australia in November 1996, and stayed with a friend, Rudy Garcon, in Kensington.
13.When I arrived in Australia, I thought that I had a visa for three months. I wasn’t sure whether I would need to stay longer, not as long, or for the three months. I thought that I would wait and see how it went.
14.I did not fill out the incoming passenger card myself, as I couldn’t speak English. A man on the plane spoke Spanish, and filled it out for me. I signed it.
15.Jorge was living in Stanmore at that time, and I visited him the day after I arrived. A friend of Rudy Garcon drove me there, because I was new in Sydney, and didn’t know my way around.
16.It was wonderful to see him, and he seemed so much happier now that I was there. He had seemed very sad and sick when I talked to him on the phone.
17.While he was in Stanmore, I would see him every two days. He would often come and pick me up, and he would show me around Sydney. I would go back to his house and help with washing, and other household chores.
18.By January of 1997, I realised that I wanted more time in Australia. I felt like a different person away from the problems with my ex-husband and his new partner, and I thought that I had an opportunity to start a new life.
19.I talked about this with Jorge, and he told me about Melanie Ramos, a migration agent, at Rockdale Community Centre. I told her about the problems with my husband, and she told me that I could apply for an extension of my visa, and a visa for domestic violence.
20.She filled out my forms, based on what I told her, and I signed it. She did not read it back to me. I obtained a visa which allowed me to work. I obtained a tax file number, and found a job.
21.In March 1997, Jorge moved to Berala. I would see him twice a week, usually in Sydney (because Jorge was back at work, in Sydney), and I would visit him at the weekend.
Relationship with Jaime
22.I met Jaimie [sic] in December 1997. I went with a friend, Maria Paredes, to the Marconi Club, and she introduced Jaime to me. Jaime was a member of a band that was playing there, and we started talking.
23.Jaime started to ring two or three times a week, and on a Sunday, we would look around Sydney, and go out to dinner.
24.Later, we became more than friends. I would go out to his place on Friday, and spend the weekend with him.
25.It was on my birthday that he proposed to me. I had been thinking hard about whether to be involved with him, as the problems with my ex-husband meant that I was frightened about getting involved with another.
He said, “What is your feeling for me? Do you see me as a husband?”
I said, “Yes, because you are an older man, and I feel good with you.”
26.The conversation was good, and I felt that I was safe with him. I felt that I was in love.
27.In early 1998, I became worried about my immigration status. I went to see Alec Alexandrou, and asked him what could be done in order for me to stay in Australia.
28.I lost contact with Mr Alexandrou, who I think went to Canberra. I didn’t take any further steps until late 2000 to sort out my immigration status.
29.I wanted to stay in Australia. I knew that I was not supposed to remain. I know that it was wrong to stay. I knew that I wasn’t allowed to continue working. I know that that was wrong too.
30.Jaime asked me to move in with him in May 2000. I said that I would not move in until we married, and that was when we set a date of 15 July 2000.
31.After we married, I moved in with Jaime in his house in Liverpool.
32.I left Australia in November, 2000.
Interview in Quitto with DIMA officer.
33.I spoke to someone from the Australian Government in Quitto, in 2001, about my application for a spouse visa. We met at the Sheraton Hotel, and the woman had a computer with her, which she typed on during the interview. There was an interpreter, but I often couldn’t really understand what the interpreter was saying, when she spoke in Spanish, and she often mixed Spanish and English. I found her confusing.
34. She did not ask me anything about my brother’s operation, or how he was.
Since return to Quitto.
35.I speak to my husband three times a week, and he sends me money. He rings me, because it is very expensive to call from Ecuador. I know that it costs him a lot of money.
36.I remember her asking me why I went to Australia. I told her that I went because of my brother’s illness, and because of the situation with my ex-husband. I did not tell her that I went to Australia to prove my economic situation. I have never lived in Peru.
37.I am working back in Ecuador, selling clothes from house to house.
38.I also teach the bible on Saturday mornings, and I help children at the local public school, preparing and serving breakfast for them before school.
39.I miss my husband very much. I am worried about his health, which I feel is worse because of the stress of being apart from me.
Myrian Hernandez
2003
12. There is one other document which can conveniently be included in this Part A. The Applicant was interviewed by the Australian Embassy in Santiago in connection with her Spouse Visa application on 29 June 2001. The interviewing officer was Ms Irene Darby a principal migration officer, and an interpreter was available throughout. The interview record is attached to Exhibit R3; it is set out in full in these reasons as follows:-
“F2000/134792
RENJIFO SIMBANA, MYRYAN ‑ 309
THE APPLICANT TRAVELLED TO AUSTRALIA IN NOVEMBER 1996. HER BROTHER HAD PREVIOUSLY ARRIVED IN JANUARY 1996. TWO MONTHS AFTER HER ARRIVAL SHE APPLIED FOR A PROTECTION VISA THAT WAS REFUSED BY RRT IN DECEMBER 97. SHE IS NOT ON MAL.
HER BROTHER WAS GRANTED A 100 SPOUSE VISA IN 1998, HE DIVORCED AND NOW HE IS SPONSORING HIS FIRST WIFE AND CHILDREN. APPLICATION IS STILL PENDING AS IT LOOKS LIKE BROTHER'S MARRIAGE TO AUSTRALIAN SPONSOR WAS CONTRIVED IN ORDER TO OBTAIN PERMANENT RESIDENCE FOR HIM, AND LATER FOR HIS WIFE AND CHILDREN.
APPLICANT CLAIMED IN FORM 47 THAT SHE NEVER HAD ANY PREVIOUS MARRIAGES NOR RELATIONSHIPS. INWARD CARD FOR INITIAL ENTRY TO AUSTRALIA STATED MARRIED (FOLIO 60). IN PROTECTION APPLICATION SHE CLAIMED SEPARATED (FOLIO 64). SO FAR THE APPLICANT HAS NOT PROVIDED ANY PROOF OF HER DIVORCE.
IN HER PROTECTION VISA APPLICATION SHE CLAIMED THAT SHE LIVED AT 7/68 ANZAC PARADE, KENSINGTON FROM 11/96 TO DATE OF APPLICATION. IN FORM 47SP SHE STATED THAT FROM 11/96 TO 11/00 SHE LIVED AT 4/18 GOULBURN ST, LIVERPOOL (SPONSOR'S ADDRESS). FOLIO 33 IS AUTHORIZATION FROM THE DEPARTMENT OF HOUSING FOR HER TO OCCUPY SPONSOR'S HOUSE. DOCUMENT IS DATED 20/10/00 ‑ 3 MONTHS AFTER THEY MARRIED.
APPLICANT'S AGENT IS ALEC ALEXANDROU, AND HER MARRIAGE WAS PERFORMED BY ALFRED ARNDT.
THE APPLICANT CLAIMS THEY MET IN JANUARY 97 AT CLUB MARCONI. HE IS A MEMBER OF A BAND AND THEY WERE INTRODUCED BY A FRIEND. IN MAY 98 THEY BECAME ENGAGED AND THEY MARRIED 15/07/00. THERE IS NO EVIDENCE OF JOINT OWNERSHIP.
QUESTIONS TO BE ASKED OF APPLICANT ARE MAINLY TO DETERMINE THE GENUINESS OF THE RELATIONSHIP, CONSIDERING HER BROTHER'S MIGRATION HISTORY, HER APPLICATION FOR A PROTECTION VISA, THE 4 YEARS SHE LIVED IN AUSTRALIA AND HER NAME BEING MENTIONED BY ANOTHER APPLICANT FROM ECUADOR
‑ WHAT IS THE NAME OF THE CITY WHERE SHE WAS BORN
‑ WHAT IS HIS DATE OF BIRTH
‑ WHAT ARE HIS HOBBIES
‑ IS HE WORKING ‑ STUDYING ‑ ON BENEFITS
‑ IF ON BENEFITS, WHAT KIND (HE IS ON DSP)
‑ WHY IS HE GETTING DSP
‑ HOW DOES HE SUPPORT HERSELF
‑ WHAT FAMILY DOES HE HAVE IN AUSTRALIA AND IN CHILE
‑ HAS HE EVER BEEN MARRIED BEFORE ‑ NAME OF SPOUSE (2)
‑ HOW MANY CHILDREN, NAMES, WHEREABOUTS
‑WHAT IS HIS ADDRESS AND TELEPHONE NUMBER‑ HOW LONG HAS HE LIVED IN THAT PLACE
‑ WHEN DID HE ARRIVE IN AUSTRALIA
‑HAVE THE APPLICANT AND THE SPONSOR EXCHANGED RINGS. IF NOT, WHY
‑ WHO WERE THE WITNESSES FOR THEIR WEDDING
‑WHAT ARE THEIR PLANS FOR THE FUTURE ‑ HAVE THEY DISCUSSED THE ISSUE
‑ WHAT WOULD SHE DO IN AUSTRALIA
‑IS SHE AWARE THAT HER SONS MAY NOT BE ELIGIBLE FOR MIGRATION AS THEY ARE 22 AND ALMOST 24
‑WHAT WOULD SHE DO IF SHE CANNOT INCLUDE HER SONS IN APPLICATION
‑WHAT WOULD SHE DO IF HER APPLICATION IS NOT SUCCESSFUL. WOULD HE MOVE TO ECUADOR TO BE WITH HER
‑ HAS MONEY BEEN PAID TO HIM TO MARRY HER
PA WAS INTERVIEWED IN QUITO, EQUADOR ON 29/6/01 BY IRENE DARBY, PMO. THE FOLLOWING QUESTIONS WERE ASKED –
· COULD YOU PLEASE TELL ME WHEN YOU ORIGINALLY TRAVELLED TO AUSTRALIA AND WHY?
NOVEMBER 28, 1996. TO VISIT MY BROTHER OVER THERE AS MY SISTER‑IN‑LAW WAS VISITING AND I DECIDED TO TRAVEL BACK WITH HER.
· DID YOU TRAVEL TO AUSTRALIA ON A TOURIST VISA?
YES, I TRAVELLED ON A TOURIST VISA.
· HOW LONG DID YOU PLAN TO STAY IN AUSTRALIA?
I PLANNED TO STAY IN AUSTRALIA ONE YEAR.
# PLEASE PROVIDE ME WITH DETAILS ABOUT FIRST VISIT VISA APPLICATION AND REASONS FOR TRAVEL AND LENGTH OF TRAVEL
· AT THE TIME YOU TRAVELLED WERE YOU MARRIED?
YES, I WAS STILL MARRIED TO ALLONSO DIAZ BUT I WAS SEPARATED FROM HIM IN 1992.
· CAN YOU PLEASE TELL ME WHY YOU HAD CLAIMED IN YOUR VISITOR APPLICATION THAT YOU WERE NEVER MARRIED?
I DID NOT CLAIM THAT. MY PASSPORT HAD MY MARRIED NAME ON IT. I DID NOT CLAIM THAT I WAS NEVER MARRIED OR IN A RELATIONSHIP.
· CAN YOU PLEASE EXPLAIN WHY YOUR APPLICATION FORM STATED THAT YOU WERE NOT MARRIED?
I DO NOT KNOW, MY ATTORNEY AT LAW COMPLETED MY APPLICATION FORM.
· WHY DID HE DO THIS?
BECAUSE IT WAS IN ENGLISH. HE ASKED THE QUESTIONS AND I ANSWERED AND SIGNED THE FORM.
· I AM TALKING ABOUT THE VISITOR VISA APPLICATION IN EQUADO, I THINK THAT WE HAVE SOME CONFUSION HERE?
IT WAS FILLED OUT BY A NOTIARY BECAUSE I WAS NOT FAMILIAR WITH THE PROCEDURES AND HE WAS A FACILITATOR WHO DID IT FOR ME. I WAS NOT AWARE WHAT WAS IN THE FORM.
· WHEN YOU TRAVELLED TO AUSTRALIA, WHAT WAS YOUR INTENTION AT THAT TIME?
I WENT TO AUSTRALIA TO CHANGE MY LIFE BECAUSE MY MARRIAGE HAD ENDED. TO IMPROVE MY FINANCIAL SITUATION ‑ MAINLY TO DO THIS AS I HAD TO SUPPORT 2 CHILDREN. I NEEDED TO IMPROVE MY CHILDREN'S SITUATION.
· WAS YOUR PRIMARY REASON TO TRAVEL TO AUSTRALIA TO FIND EMPLOYMENT AND EARN MONEY WHILE YOU WERE THERE?
YES IT WAS AS I HAD TO SUPPORT MY CHILDREN AND THE FINANCIAL SITUATION IN PERU IS TOO BAD.
· WHAT OTHER APPLICATIONS FOR RESIDENCE IN AUSTRALIA DID YOU LODGE?
I APPLIED FOR A VISA THAT WOULD ALLOW ME TO WORK ‑ MY BROTHER ADVISED ME TO DO THIS.
· WHAT SORT OF VISA DID YOU APPLY FOR?
I THINK IT WAS A VISA BECAUSE OF DOMESTIC VIOLENCE AS MY HUSBAND USED TO VISIT ME SOMETIMES WHEN HE WAS DRUNK AND HE WOULD ABUSE ME AND MY CHILDREN.
· WHO DID YOU LEAVE YOUR CHILDREN WITH?
MY CHILDREN REMAINED WITH MY MOTHER.
· WHO SUPPORTED YOUR CHILDREN WHILE YOU WERE IN AUSTRALIA?
MY MOTHER AND I ALSO CONTRIBUTED WITH WHAT MY BROTHER HAD GIVEN ME. AFTER THAT I STARTED WORKING AND WOULD SEND MONEY AS WELL.
· WHEN DID YOU DIVORCE YOUR FIRST HUSBAND?
APPLICANT DID NOT KNOW DATE OF DIVORCE AND HAD TO REFER TO THE DOCUMENT. STATED THAT THIS WAS THE PRIMARY PURPOSE FOR LEAVING EQUADOR ‑ TO DIVORCE HER HUSBAND AND SHE WAS TOO FRIGHTENED TO DO IT IN COUNTRY. PA THEN STATED THAT IT WAS DECEMBER 15, 1998 ‑ PA THEN CORRECTED HERSELF AND STATED THAT IT WAS 30 NOVEMBER 1998.
· WHAT IS THE NAME OF THE CITY WHERE YOU WERE BORN?
I WAS BORN IN QUITO.
· WHAT IS YOUR SECOND HUSBAND'S NAME?
HIS NAME IS JAIME HERNANDEZ.
· WHAT IS HIS NATIONALITY?
HE IS CHILEAN AND HE WAS BORN IN CONCEPTION AND HIS DOB IS 16 OCTOBER 1941. HE IS 61 YEARS.
· WHAT IS HIS STATUS IN AUSTRALIA ‑ IS HE A PERMANENT RESIDENT AND HOW DID HE GO TO AUSTRALIA?
HE IS A PERMANENT RESIDENT. HE WAS EXILED FROM CHILE BECAUSE OF HIS POLITICAL POSITION.
· IS HE AN AUSTRALIAN CITIZEN?
YES HE IS.
· WAS HE MARRIED BEFORE?
YES
· WHO WAS HE MARRIED TO?
HE WAS MARRIED TWICE BEFORE BUT I DO NOT REMEMBER ANY DETAILS. PA THEN STATED THAT HE WAS FIRST MARRIED TO A CHILEAN WOMAN AND THEY HAD 6 CHILDREN. HE LEFT CHILE FIRST AND WENT TO CUBA AND THEN THE WIFE AND CHILDREN FOLLOWED. FROM THERE THEY ALL WENT TO AUSTRALIA.
· WHAT ABOUT HIS SECOND WIFE?
HIS SECOND WIFE WAS CHILEAN. HE SPONSORED HER TO AUSTRALIA PA THINKS AROUND 10 YEARS AGO. THEY DID NOT GET ON AND SHE RETURNED TO CHILE.
# IF YOU CAN, CHECK WHEN THE SECOND WIFE WAS SPONSORED BY SPONSOR.
· WHEN DID YOU MEET YOUR HUSBAND?
I MET HIM IN JANUARY OF 1998.
· HOW DID YOU MEET?
WE MET AT A CLUB AS HE WAS IN A MUSIC GROUP.
· WHAT FAMILY DOES HE HAVE IN AUSTRALIA?
ALL OF HIS CHILDREN ARE IN AUSTRALIA. I HAVE MET ONLY TWO OF HIS CHILDREN AS HE AND HIS CHILDREN DO NOT GET ON.
· WHO ATTENDED YOUR WEDDING?
HIS DAUGHTER ATTENDED HIS WEDDING ‑ SOLANGE. NOBODY ELSE FROM HIS FAMILY. THERE WERE 20 PEOPLE. HER BROTHER, SOME FRIENDS OF HIS AND HERS.
· DID YOU EXCHANGE RINGS?
THEY DID NOT BUY WEDDING BANDS AS THEY DID NOT HAVE THE MONEY FOR THEM.
· DOES YOUR SPOUSE WORK?
NO, HE HAS HIS MUSIC GROUP AND ONCE IN A WHILE HE PERFORMS. SOMETIMES HE DOES CARPENTARY WORK.
· HOW DOES HE LIVE?
HE IS ON A PENSION. I DO NOT KNOW WHAT PENSION. PA THEN STATED THAT HE WAS ON A DISABILITY PENSION AS HE HAS A PARALYSED HAND.
· WHO WERE THE WITNESSES FOR THE WEDDING?
SYLVIA ORDONEZ AND HUGO NARDINI
· WHAT RELATIONSHIP IS SYLIVA?
SHE IS A FRIEND OF BOTH OF US
· WHAT IS THE RELATIONSHIP OF HUGO?
HE IS A FRIEND OF BOTH OF US ‑ HE BELONGS TO THE MUSIC GROUP.
· WHAT DO YOU PLAN TO DO WHEN YOU GO TO AUSTRALIA?
DEVOTE MYSELF TO MY HUSBAND AND WORK.
· ARE YOUR SONS PLANNING TO MIGRATE WITH YOU?
YES
· WHAT ARE THEY CURRENTLY DOING?
THE YOUNGER ONE WORKS ‑ HE IS A MECHANIC AND HE WORKS WITH RELATIVES
THE OLDER ONE WORKS AS A PUBLIC SERVANT ‑ HE IS A MESSANGER.
· DO YOU REALISE THAT YOUR CHILDREN ARE PROBABLY NOT ELIGIBLE TO MIGRATE TO AUSTRALIA WITH YOU?
NO, WHY?
BECAUSE THEY ARE TOO OLD AND ARE NO LONGER DEPENDENT ON YOU.
· WHAT WILL YOU DO IF YOUR CHILDREN CANNOT TRAVEL WITH YOU?
I MUST GO TO AUSTRALIA BECAUSE MY HUSBAND IS THERE.
· WHAT WILL YOU DO IF YOU ARE NOT SUCCESSFUL WITH THIS APPLICATION?
MY HUSBAND MIGHT COME AND LIVE WITH ME HERE.
# IT APPEARS TO ME THAT BOTH THIS PA AND HER BROTHER TRAVELLED TO AUSTRALIA WITH THE INTENTION OF REMAINING PERMANENTLY ANY WAY THEY COULD. WE NEED TO FOLLOW‑UP ON BROTHER'S APPLICATION TO REMAIN IN AUSTRALIA – I UNDERSTAND AS A SPOUSE AND HIS FIRST WIFE'S APPLICATION TO JOIN HIM AGAIN NOW THAT HIS FIRST MARRIAGE HAS BROKEN DOWN. PLEASE HAVE IT READY FOR ME TO REVIEW ON MY RETURN.
· WHEN DID YOUR BROTHER GO TO AUSTRALIA?
IN JANUARY OF 1995.
· WHY DID HE TRAVEL TO AUSTRALIA?
HE TRAVELLED TO AUSTRALIA TO FIND A BETTER PLACE TO LIVE FINANCIALLY.
· WHAT SORT OF VISA DID HE TRAVEL TO AUSTRALIA ON?
A TOURIST VISA LIKE ME.
# PLEASE HAVE DETAILS OF BROTHER' TOURIST VISA AVAILABLE FOR MY CONSIDERATION ON MY RETURN. DID HE ALSO LODGE A PROTECTION VISA ON ARRIVAL IN AUSTRALIA? IF SO WE ALSO NEED TO FOLLOW‑UP ON THAT APPLICATION.
· HOW DID HE GET TO REMAIN IN AUSTRALIA?
HE MET A FRIEND FROM EQUADOR WHO WAS ALSO A MECHANIC LIKE HIMSELF AND HE STARTED HIM IN THINK WHY SHOULD HE GO BACK 1F HE COULD REMAIN IN AUSTRALIA AND MAKE MORE THAN HE COULD MAKE IN EQUADOR. SO HE COMMENCED WORKING AND HE TRIED TO STUDY ENGLISH.
· HE WAS MARRIED AT HIS TIME?
YES.
· WHO WAS HE MARRIED TO?
WITH HIS CURRENT WIFE WHO IS HERE AND HE IS NOW SPONSORING TO AUSTRALIA NOW THAT HE IS DIVORCED FROM HIS SECOND WIFE.
WHEN HE RETURNED TO EQUADOR HE SPOKE TO HIS CHILDREN AND HE STARTED A RELATIONSHIP WITH HIS FIRST WIFE AGAIN.
I BELIEVE THAT BOTH PA AND HER BROTHER HAVE TRAVELLED TO AUSTRALIA WITH THE INTENTION OF GAINING PERMANENT RESIDENCY IN ANY WAY POSSIBLE. PA'S BROTHER APPEARS TO HAVE MARRIED AN AUSTRALIAN/PERMANENT RESIDENT ‑ POSSIBLY FOLLOWING FAILED PROTECTION APPLICATIONS – AND BEEN GRANTED PERMANENT RESIDENCY AND NOW CITIZENSHIP AND IS NOW SPONSORING HIS FIRST WIFE AND CHILDREN. PA, WITH A FAILED PROTECTION VISA BEHIND HER, MARRIED AND IS NOW SEEKING TO MIGRATE ON A 309. I DOUBT THE GENUINENESS OF THIS RELATIONSHIP, AND ALSO THAT OF HER BROTHER'S FIRST RELATIONSHIP. THIS CASE, AND HER BROTHER'S FIRST SPOUSE'S APPLICATION ARE ONES FOR FURTHER INTENSIVE INVESTIGATION IN AUSTRALIA”.
PART – B THE EVIDENCE OF THE APPLICANT
12. As the Tribunal stated earlier, the Applicant’s evidence in chief consisted, to a large extent, of his affirmation of the truth of his witness statement Exhibit A1. That witness statement differed from a previous witness statement sent on behalf of the Applicant to the Tribunal. There are two differences between the earlier version and the version which was tendered, being Exhibit A1. In the earlier version, the Applicant said that he met the Visa Applicant on 26 December 1998 and that a relevant party to celebrate the Visa Applicant’s birthday took place on 22 May 1999. Those dates were in Exhibit A1 amended so as to refer to 26 December 1997 and 22 May 1998 respectively.
13. The Applicant first came to Australia in 1985 as a political refugee. He was accompanied by his wife at the time, and their six children. The Applicant was born in Chile and lived in Chile where he suffered persecution from the government of Chile at that time (see in particular Exhibit A4 which indicates that the Applicant’s sufferings were severe indeed). He left Chile in 1964 and for about 21 years thereafter lived in Cuba. The Applicant has, since he was seven years old (and he was born in 1941), suffered from epilepsy. After his arrival in Australia, he worked in Victoria for Transfield, where he was involved in the construction of high tension towers. In 1990, when returning to camp, he was a passenger in a jeep which overturned and, as a result, suffered injuries to the right side of his body.
14. The Applicant has not worked in Australia since the jeep accident. He receives a full disability pension currently $440 per fortnight. That disability pension was granted not in consequence of the jeep accident but in consequence of his epileptic condition and notwithstanding that that condition predated his entry into Australia by decades. The Applicant’s evidence was that he sends US$50 per month to the Visa Applicant.
15. Although the Applicant has been in Australia since 1985, he has very little English and, it would seem, spends all of his time with members of the Latin American community. He said that he worked in Victoria as “just a simple worker”.. However, while in Cuba and after leaving Chile he became a textile designer and achieved a degree or a comparable qualification from the Havana Art School. He currently spends time in the Latin American community in cases such as Fairfield and Cabramatta teaching Spanish speaking people to paint. He also plays musical instruments as a member of a mime orchestra.
16. The Applicant was first married to Juana in 1963. He said that in marrying her he made an error in that she never loved him and as a result he stayed with her but only for the sake of the children for some 18 years. They were divorced in Australia. Of the six children, five live in Sydney while one of his sons lives in Queensland.
17. The Applicant gave evidence and was cross-examined at length as to when and where he met the Visa Applicant and when certain important events in their lives together took place. Suffice to say the Applicant’s evidence was in this context quite remarkably inconsistent. His evidence as to when they met, when they became engaged and when they started living together was, in particular, inconsistent, his answers differing materially at various times during his evidence and, in addition, differing from his own witness statement (Exhibit A1). Given that Mr Muthalib has conceded that the marriage was genuine, it is not in the Tribunal’s view necessary for me to set out in detail the numerous, and at times serious, inconsistencies in his evidence. As one example, in his witness statement he said that he proposed to the Visa Applicant in May 2000. In accordance with his oral evidence he said that this occurred two years earlier. He was not clear, having regard to his various differing statements as to when he originally met her and his evidence as to when they started living together was equally inconsistent. However, the marriage is a fact and there is no dispute by the Respondent as to its genuineness. The Tribunal can accept, even though the Applicant’s evidence on this aspect was equally inconsistent, that he knew that the Visa Applicant was not legally resident in Australia before he married her. As to how much precisely was known to him was not, at least ex facie his own evidence, clear. The Visa Applicant, when she came to give evidence, said that he knew at an early stage of their relationship. Her oral evidence was equally unreliable. It is likely, on a balance of probabilities, that he knew of her illegal status before he married her and, moreover, before he proposed to her.
18. There was medical evidence before the Tribunal, which will be referred to later in these reasons, as to the fact that the Visa Applicant suffers from depression as well as epilepsy. He takes anti-depressants which, while desirable in some respects, might have an adverse effect on his epilepsy condition. As to how far the Applicant’s evidence on all of these aspects was untruthful or by contrast attributable to confusion and in consequence of ill health is not clear. The Tribunal notes that even on the basis that it make due allowance for his ill health, his evidence was riddled with problems of this nature. In one area in particular, the Tribunal has grave doubts as to the truthfulness of his evidence, and that area relates to his relationship with his children. The Applicant’s evidence was that living alone, as he is compelled to do since the Visa Applicant returned to Ecuador, is very bad for him in that his state of health requires constant supervision. He said that he could not expect any of his children to share a home with him because “that is not the way in Australia”. That statement was in the Tribunal’s view totally untruthful. The Applicant may live in Australia in a physical sense but, speaking Spanish only and mixing only with Latin American people, “the way in Australia” would not be very relevant. He then said that he has not been able to visit his wife in Ecuador for lack of means. He said furthermore that he maintained telephone contact with her through telephone calls funded in part by his children. When he married the Visa Applicant a reception was held in which there were some 20 guests. However, of his children only Solange was present. His answer as to why none of the others attended the wedding was that “some were working and couldn’t leave their children”.. That evidence was altogether extremely doubtful, given that the wedding took place at midday on a Saturday.
Exhibit A5 includes statements by some of the children who speak well of their stepmother, the Visa Applicant; not one of them mentions any rift of any kind as between the children and the Applicant, or for that matter, the Visa Applicant.
19. It was put to the Applicant that the Visa Applicant, when interviewed by the Australian Embassy in Santiago in June 2001, said that Solange only attended the wedding and, furthermore, that the Applicant and his children did not get on. His answer was that this was strange. He gave the same answer when it was put to him that he had complained that they did not help him.
20. The Tribunal is unsure as to whether both the Applicant and the Visa Applicant were untruthful as to the relationship between the Applicant and his children, but strongly doubts that the Applicant’s evidence before it was truthful. Hereto, the evidence was contradictory. The Visa Applicant said at the interview that she had met two of the children whereas he said that he introduced all of them to the Visa Applicant prior to marrying her. The Visa Applicant, when she came to give evidence, said at first that she had met three of the children, subsequently altered so as to refer to Solange and Juan only, but said that she had a good relationship with the other children having been introduced to them on the telephone.
21. The Tribunal understands that the Applicant’s evidence may be affected by his medical condition, but still has difficulty in finding the Applicant’s evidence, as regards his relationship with the children, as truthful. The affidavit evidence of the children, contained in Exhibit A5, will be referred to later in these reasons. (The Tribunal notes that none of the children gave oral evidence in these proceedings). As stated earlier, the wedding took place at midday on a Saturday; only Solange attended. The Tribunal finds it difficult to understand why the others did not do so, especially in the light of their affidavit evidence as to their stepmother’s assistance in looking after their father. It is also difficult to understand how those children who have never even met her are able to speak of her relationship with their father. Their affidavit evidence in this context, and as contained in Exhibit A5, is thus, in the view of the Tribunal, open to considerable doubt.
The Tribunal does not deem it likely that the children resent the Visa Applicant as someone who supplanted their mother. In the first place, the divorce from their mother took place many years ago and, in the second place, there has been another Mrs Hernandez in between, being another lady sponsored into Australia from South America.
It is, in the Tribunal’s view, reasonable to infer that, notwithstanding Exhibit A5, there is some considerable rift between the children (other than Solange) and the Applicant. Although he is in poor health, not one of them has room for him in his or her home so as to ensure that he has the necessary care. Their affidavits in support of the Visa Applicant might on this basis be motivated by a desire to have her in Australia in order to look after their father in circumstances where they are not able to do so.
22. The Applicant’s evidence as to his epilepsy was that, as a child in Chile, it could not be controlled because he was too poor, notwithstanding the fact that he had weekly seizures. He said also that at this time his epilepsy is under control if he takes his medicine, but provided that he has someone to look after him. He talked of seizures occurring at this time every two months or so.
23. Exhibit A1, somewhat surprisingly, makes no mention whatever of another marriage. In cross-examination, the Applicant said that after divorcing Joanna he married a woman from South America whose entry into Australia was sponsored by him (T page 91). That marriage also ended in divorce some while before he met the Visa Applicant. As to when exactly he met the Visa Applicant is not clear, bearing in mind that differing dates were given in evidence before the Tribunal.
24. The Applicant was asked whether it will be possible for him to be reunited with his wife, the Visa Applicant, in Ecuador or Chile or elsewhere. The answer was a categorical “No”, for a reason which appeared to the Tribunal to be of fundamental importance and crucial to the issue of hardship, and is as follows. The Applicant receives, as noted earlier, a disability grant of $440 per fortnight. His evidence (which does not give rise to doubt) is that he could receive it outside Australia but only for a short period and whereafter it would cease. Therefore, accepting the assertion that the Applicant cannot work (as the Australian Social Security Authorities have done so), for this couple to be reunited anywhere otherwise than in Australia is, as a matter of commercial necessity, impossible.. It follows then that hardship for the Applicant is a very real consideration and more so than in many other spouse visa cases. It also follows that the generosity of the Australian Social Security system, in its grant of full disability cover to a person whose working life in Australia was short and, moreover, in relation to a pre-existing illness, operates in the Applicant’s favour in this case to a considerable and decisive extent.
25. The Tribunal, in summary, understands from the Applicant’s evidence that he is a man who suffered greatly in Chile (until he left that country in 1964), whose relationship with his children is decidedly uncertain and whose health is such that he needs full time care.
PART C – THE EVIDENCE OF MARIA PAREDES
26. The evidence of Maria Paredes is contained in Exhibit A2; Ms Paredes also gave oral evidence before the Tribunal. She met the Visa Applicant at the Marconi Club in 1997 and later met the Applicant at the same club. She attended the wedding; she did not know that the Visa Applicant was illegally in Australia and came to know it only when “we started to draw the papers”.
103. This is a case where the Visa Applicant’s conduct was unquestionably serious within clause 2.6 (c) of Ministerial Direction Number 21. The penalties prescribed for breaches of section 234 of the Act are such that this must be so. The hardship factor for the Applicant is, however, impossible to surmount. Even allowing for the fact that his own evidence was often untruthful, and the fact that he knew of the Visa Applicant’s illegal status, the fact remains that he is seriously ill (according to the medical evidence) and she is apparently the only person who is prepared to care for him. That, at any rate, is the evidence before me. The Exhibit A5 evidence as to the great devotion existing between the Applicant and the Visa Applicant given by children of the Applicant can be discounted to a considerable extent, especially in so far as it comes from deponents who have never met the Visa Applicant. The Tribunal is mindful in this context of the fact that this application relates to a provisional visa only, so the progress of this relationship will presumably be monitored. If, in the result, the Visa Applicant comes to Australia but for whatever reason does not care for the Applicant, then presumably there can and indeed should be a review.
104. The Tribunal is aware of the fact that it is possible that the children of the Applicant may not be prepared to look after the Applicant purely in order to further the progress of this application. Even if this is so, the fact that they are not prepared to do so is a fact of which the Tribunal must take cognisance. The statement by the Applicant that he does not live with any of the children because this is not the way in Australia is, in all the circumstances and when one considers the evidence as a whole, particularly doubtful. But, and at the risk of labouring the point, the Tribunal is faced in this case with an Applicant who is ill and needs care, the only person being able to give him that care being the Visa Applicant, in circumstances where it is not practically possible for the Applicant and the Visa Applicant to be reunited outside Australia.
105. In the circumstances, the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a spouse visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Myryan Rengifo Simbana.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President
Signed: C. Gregson
AssociateDate/s of Hearing 7-8/7/03; 3-4/9/03
Date of Decision September 2003
Counsel for the Applicant Mr C Jackson
Solicitor for the Applicant Mr B Halligan
Solicitor for the Respondent Mr Muthalib
0
2
0