Kirazli and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 566

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 566

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/966

GENERAL ADMINISTRATIVE   DIVISION		)
Re		HAYRIYE KIRAZLI

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date26 May 2004

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds on the material before the Tribunal.  

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Immigration - subclass 309 spouse visa - whether applicant fails character test - false and misleading information - decision set aside.

Migration Act 1958 – s50(6),(7) and (10)

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277

REASONS FOR DECISION

26 May 2004 Mr S P Estcourt QC., (Deputy President)           

1. This is a curious case where the respondent has refused a spouse visa to the review applicant’s husband, Murat Toredi, on character grounds, namely the fact of a substantial criminal record within the meaning of s501(7) of the Migration Act 1958 (“the Act”) and the provision of false and misleading information constituting past criminal or general conduct within the meaning of s501(6) of the Act, and has also based the refusal on a failure to provide a Police Good Conduct Certificate from the Netherlands where the visa applicant previously resided for a period.

2.      On 26 April 1999 the visa applicant was convicted in Turkey of possessing an unlicensed firearm and was sentenced to 12 months imprisonment and fined.   He did not go to jail however because, on the unchallenged evidence to the Tribunal contained in his statement (Exhibit 2), he was the subject of an amnesty for this offence.

3. Thus, although s501(7) provides that a person does not pass the character test posed by that section of the Act if the person has a “substantial criminal record”, comprised by a sentence of a term of imprisonment of 12 months or more, that sentence is to be disregarded by virtue of s501(10) of the Act as the applicant was, according to the ordinary English meaning of “amnesty”, “pardoned in relation to the conviction concerned”.

4.      The respondent also contends however that the visa applicant fails the character test because he answered “No” to Q67 in his visa application, which question asked if he had been convicted “of a crime or offence in any country (including any conviction which is now removed from official records”.

5.      The review applicant gave evidence that she completed the relevant section of the visa application in Australia, where she resides as a citizen, and sent the form to Turkey for the visa applicant to sign.    She said that the answering of Q67 in the negative was an error on her part.   She said  that she knew her husband had been charged in Turkey with carrying an unlicensed  firearm, but she also knew that he had not gone to prison and that, she said, is what she based her answer on.

6.      The review applicant, for whom English is not a first language, was not challenged on this explanation.

7.      The visa applicant confirmed that the visa application form was completed by his wife and that as she was living in Australia and “knew the rules” he relied on her for this.

8.      By signing the application the visa applicant accepted responsibility for its contents and the fact is that the answer to Q67 is false.     It is not however, in these circumstances, “false and misleading” in the relevant sense and even if it were it would not of itself persuade me that he visa applicant is “a person whose lack of good character is such that it is for the public good to refuse entry to Australia as explained by Spender, Drummond and Mansfield JJ in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at p6.

9.      The respondent also contends that the visa applicant fails the character test because in a letter he wrote to the Australian Embassy in Ankara on 6 May 2003 he stated:

“I have no criminal history either in Turkey or any foreign country.”

10.     The visa applicant told the Tribunal that the Embassy had asked him to advise whether he had a record of offences in another country and that he had asked a translator to write his reply.   He said:

“Unfortunately the translator included Turkey in my answer which I wasn’t aware of.”

11.     When challenged about this in cross-examination by Mr Wood, counsel for the respondent, the visa applicant asked to be given more credit than to have lied about this as he had already provided the Embassy with the documentary record of his conviction in Turkey for the firearm offence.

12.     The records before the Tribunal bear the visa applicant out as to this, showing that the provision of his documentary record of convictions to the Embassy pre-dates the letter of 6 May 2003.  I accept his explanation on this basis.

13.     It follows that the visa applicant has not failed to pass the character test by virtue of either his conviction and sentence for the 1999 firearm offence, pardoned by amnesty, nor by virtue of his adoption of his wife’s mistake in the completion of the answer to Q67 on the visa application, nor by virtue of the contents of the letter of 6 May 2003.

14.     There remains however the question of the visa applicant’s failure to provide proof of his “penal clearance” in the Netherlands.

15.     As to this, the visa applicant told the Tribunal as to this that he has been told that no such police certificate can be issued to him and that as an individual in Turkey he has used all his resources to try and obtain such a document and has failed.   His uncontradicted and unchallenged evidence is that he has no conviction in the Netherlands.

16.     I accept his explanation.    Although Australian Government form 47P issued in the Department of Immigration and Multicultural and Indigenous Affairs in respect of obtaining “penal clearance” asserts that a Police Good Conduct Certificate can be had by emailing the Netherlands Ministry of Justice at < and by providing a photocopy passport and on payment of a fee, I would not be surprised if a person in the visa applicant’s position had encountered difficulties in respect of a stay in the Netherlands 10 years ago.

17.     The failure by the visa applicant to further pursue the quest for this certificate does not in my view affect his “enduring moral qualities” in the sense discussed by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432. Nonetheless the failure to provide written evidence of the visa applicant’s attempts understandably a cause of concern to the respondent.

18. In my judgment the respondent would have been justified in refusing to process the visa applicant’s visa until he provided written evidence of his attempts but, absent, as I have found, the existence of any legitimate concerns arising from the answer to Q67 and the letter of 6 May 2003, and in view of the applicant’s uncontradicted and unchallenged evidence that he has no convictions in the Netherlands, there is no justification for a finding of a failure to discharge the onus created by s501(6) of the Act based solely on the failure to provide proof of unsuccessful efforts to obtain the relevant certificate.

19.     It follows that the decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds on the material before the Tribunal.

20.     The order of the Tribunal is not intended to prevent the respondent from pursuing  enquiries of his own with  the Netherlands Government and any matters adverse to the visa applicant arising as a result may be a ground for a further refusal of the visa.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  24 May 2004
Date of Decision  26 May 2004
Counsel for the Applicant         Applicant appeared on her own behalf.
Solicitor for the Applicant           
Counsel for the Respondent     Mr Derek Wood
Solicitor for the Respondent     Blake Dawson Waldron