Koudinova and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 399
•20 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 399
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1425
GENERAL ADMINISTRATIVE DIVISION ) Re ELENA KOUDINOVA Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis Q. C., Deputy President Date20 April 2004
PlaceSydney
Decision The decision under review is set aside and the matter remitted to the Respondent for further consideration with a direction that the application is not to be refused on the ground that the Visa Applicant does not satisfy the character test.
[Sgd] R N J Purvis
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – character test – alleged false and misleading statements – overstay bridging visa A and working without permission in Australia – allegations not sustained – Visa Applicant not aware of spouse visa refusal, termination of period of bridging visa or permission to work – no evidence of serious misconduct – no contempt of or disregard for the law – decision set aside
LEGISLATION
Migration Act 1958 sections 234, 501
Ministerial Direction 21
CASE LAW
Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432
Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 342
Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2000] AATA 1244
Re Lachmaiya and Department of Immigration and Ethnic Affairs [AATA 9295, 8 February 1994)
Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87
REASONS FOR DECISION
20 April 2004 The Hon R N J Purvis Q. C., Deputy President the application
1.This is an application of Ms Elena Koudinova, (“the Applicant”) seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 22 July 2003. By such decision the Respondent refused to grant to Mr Martiros Vardanian (“the Visa Applicant”) a spouse visa (subclass 309) maintaining that he was not of good character and the available discretion should not be exercised in his favour.
2.In the decision record supporting the above-mentioned refusal and with reference to the character of the Visa Applicant, the Respondent inter alia stated:
“501(6)(c)(ii) – the person’s past and present general conduct.
Issues to be taken into consideration include:
·the provision of false and misleading information in relation to the applicant’s Spouse visa application (subclass 820) lodged in Australia, in which he claimed to be in a relationship with and residing with the sponsor of that application Ms Natalia Pogossian at 24A Victoria Street, Kogarah;
·the provision of false and misleading information to immigration officers on 06 March 1997, at which time the applicant stated that his relationship with Ms Natalia Pogossian was continuing and that he resided at 24A Victoria Street, Kogarah; and
·that the applicant remained unlawfully in Australia for over 19 months and was subsequently detained in December 1998.
The provision of false and misleading information in the spouse application
The applicant lodged a spouse visa application with DIMIA Sydney in April 1996, 12 days after his wedding to Natalia Pogossian. In his application form he identified his residential address as 24A Victoria St Kogarah, the residential address of Natalia Pogossian.
The applicant has not and never intended to live at 24A Victoria St Kogarah. He confirmed this fact at interview on 15 March 1999 and 2 July 2003. The applicant confirmed that he lived at his brother’s residence.
…
The provision of false and misleading information to immigration officers on 6 March 1997
In January 1997, the department received verbal advice from the sponsor that the relationship had broken down in May 1996 and that she wished to withdraw her sponsorship. Written notification to this affect was received from the sponsor on 3 February 1997.
On 6 March 1997, the applicant presented to the DIMIA office with his brother who acted as interpreter. The applicant claimed that his marriage to Ms Pogossian was continuing and that he continued to reside at 24A Victoria St Kogarah.
…
Based on the information before me, I am satisfied that the applicant was not living with Ms Pogossian in March 1997. Further I am satisfied that at this time, their relationship had broken down and Ms Pogossian had withdrawn her sponsorship of the applicant.
I find that the applicant’s statements to DIMIA officers in March 1997 were false and misleading. I find that he has made these statements in an attempt to secure residency in Australian (sic).
Remaining in Australia for an extended period as an unlawful non-citizen
The applicant remained unlawfully in Australia for over 19 months and was detained as an unlawful non-citizen in December 1998. The applicant claims that he did not receive the decision on his spouse visa lodged in Australia. I accept that the applicant may not have received notification of application refusal, however, I find that this was the result of his attempt to mislead the department.
…
I find that the applicant was unlawful in Australia as a result of his provision of false and misleading information regarding his claimed residential address.
…
I do not accept that the applicant was genuine in relations with Ms Pogossian. Based on the information before me, it appears that he entered into this marriage in an attempt to secure residency in Australia. He then provided fraudulent information to DIMIA in a further attempt to remain in Australia.
…
I find that the applicant is not of good character as a result of past and present general conduct. I am satisfied that the applicant does not pass the character test and was unable to satisfy me that he does pass the character test.”
3.As to the available discretion the Respondent, in the decision record, stated:
“…the applicant has provided false and misleading information to DIMIA on a number of occasions. Mr Vardanian has false and misleading information in his spouse visa information form (subclass 820) lodged in Australia in March 1996. He provided false and misleading information to officer to DIMIA in March 1997…he provided incorrect information in relation to his marital status on his short stay visitor visa application form (subclass 676), lodged with the Australian Embassy Moscow in 1995.
…I am far from satisfied that similar conduct is unlikely to be repeated.
…
A refusal of Mr Vardanian on character grounds may deter other people from committing the same or a similar offence.
…
There is a general expectation within the Australian community that visa applicants will not provide false or misleading information to obtain entry.
…
· The applicant is free to travel outside Armenia and three is no legal impediment preventing him from leaving Armenia temporarily or permanently. Likewise, the sponsor are [sic] both free to travel outside Australia and there is no impediment preventing her from leaving Australia temporarily or permanently. In addition, there is also no legal or physical impediment preventing them from entering Armenia.
…
· The applicant has not identified any other ties to Australia.
· The applicant has not identified any recent acts of good conduct.”
the hearing
4.At the hearing of the application for review the Applicant appeared on her own account; the Respondent being represented by Mr Cramer of Messrs Blake, Dawson, Waldron, Solicitors.
5.There was introduced into evidence the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1 to T37, S1 to S10. The following written material was tendered on behalf of the parties and marked accordingly:
Exhibit No
Description
Date
A
Statutory declaration of the Applicant
17 March 2004
B
Statutory declaration of Ms Maria Shvedova
16 March 2004
C
Statutory declaration of Aram Monoukian
24 March 2004
D
Statutory declaration of Vahan Vardanian
25 March 2004
E
Letter from Australian Taxation Office advising Tax File No referring to Mr Martiros Vardanian
23 April 1996
F
Copy of Tax Return for year 1996/97 of Mr Martiros Vardanian
G
Letter of recommendation of Mr Edward Mouradian
5 November 2003
H
Document signed by Mkrtich H Minasyan
7 November 2003
J
Document headed “The Characteristic” signed by G Kaltaychyan
1
Computer print-out of visa details for Martiros Vardanian
6.Oral evidence was given by the Applicant, the Visa Applicant and Mr Edward Mouradian by telephone from Armenia, Ms Maria Shvedova, Mr Aram Manoukian and Mr Vahan Vardanian. They were each cross-examined.
the issues
7.As detailed on behalf of the Respondent the issues for determination in this application are:
1)can the Visa Applicant satisfy the Tribunal that he passes the character test having regard to his past and present general conduct within the meaning of section 501 (6) (c) of the Migration Act 1958 (“the Act”), in particular:
a)the making of a false and misleading statement in connection with a previous visa application; and/or
b)the making of a false and misleading statement on an approved form; and/or
c)the fact that the Visa Applicant overstayed his bridging visa A thereby becoming an unlawful non-citizen for a period of almost 20 months between 21 April 1997 and 10 December 1998 (when he was granted a bridging visa E); and/or
d)the fact that the Visa Applicant worked without permission in Australia between February 1996 and 17 September 1996 and 14 April 1997 and November 1998.
2)If the Visa Applicant does not pass the character test should the discretion be exercised in his favour having regard to:
· the protection of the Australian community
· the expectations of the Australian community
· the need for deterrence
· hardship to the Applicant and the Visa Applicant.
chronology of significant events
8.A chronology of facts and events not in issue between the parties is as follows:
1954, 10 July Applicant born in Kalinin, Estonia
1967, 6 February Visa Applicant born in Armenia
1993, 25 October Natalia Pogossian (Visa Applicant’s second wife) granted Australian citizenship
1995, 12 September Visa Applicant lodges application for a short-stay visitor visa
1995, 25 September Visa Applicant granted a tourist visa valid until 16 January 1996 with no work condition attached
1995, 10 November Visa Applicant arrives in Australia
1995, November Visa Applicant obtains a divorce from his first wife
1996, 16 January Visa Applicant granted a tourist visa valid until 16 July 1996 with no work condition
1996, February to October Visa Applicant works as air conditioning installation labourer
1996, 21 March Visa Applicant marries Ms Pogossian
1996, 3 April Visa Applicant lodges an application for a spouse visa sponsored by Ms Pogossian; Visa Applicant granted a bridging visa A in connection with spouse visa application permitting him to remain in Australia until 28 days after notification of primary decision, no work condition attached
1996, 17 July Visa Applicant’s visa made unconditional (work permitted)
1996, 23 September Applicant granted Australian citizenship
1996, October to December Visa Applicant works as a kitchen hand
December/January 1997 Applicant and Visa Applicant first meet
1997, 29 January Ms Pogossian advises Respondent that her relationship with the Visa Applicant had broken down; wished to withdraw her sponsorship
1997, 6 March Visa Applicant attended officer of Respondent with his brother regarding processing of spouse visa application; Visa Applicant denied marriage with Ms Pogossian no longer existed
1997, 17 March Respondent refuses to grant spouse visa to Visa Applicant
1997, 14 April Bridging visa A ceases, permission to work also ceases to be operative
1997, July to October Applicant travels to Moscow, returns in October 1997, Visa Applicant and Applicant commence living together on her return and remain living together until Visa Applicant departs Australia
1998, July to August Visa Applicant works as a labourer
1998, 18 August Visa Applicant and Ms Pogossian obtain divorce
1998, October to November Visa Applicant again works as labourer
1998, 3 October Visa Applicant and Applicant marry in Sydney
1998, 3 December Visa Applicant detained while attending office of Respondent with the Applicant
1998, 10 December Visa Applicant granted a bridging visa E
1998, 29 December Visa Applicant departs Australia
1999, 12 January Visa Applicant lodges a spouse visa application in Moscow sponsored by Applicant
1999, 15 March Visa Applicant interviewed during which he states he and Ms Pogossian never lived together
2001, 15 July Delegate refuses to grant spouse visa to Visa Applicant on ground that he and the Applicant were not in a genuine and continuing relationship
2001, 10 September Applicant lodges an application for review with Migration Review Tribunal
2002, 5 September Migration Review Tribunal finds Applicant and Visa Applicant were in a genuine and continuing relationship
2003, 22 July Delegate refuses to grant spouse visa to the Visa Applicant
2003, 5 September Applicant lodges application for review with Tribunal
relevant legislation and direction
9.Section 234(1) of the Act provides:
"234 False Papers etc.
(1) A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both."
10.The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.
“Section 235 offences in relation to work
(1) If:
(a)the temporary visa held by a non-citizen is subject to a prescribed condition restricting the work of the non-citizen may do in Australia; and
(b) the non-citizen contravenes that condition;
the non-citizen commits an offence against this section.
…”
11.By section 501(1) of the Act, the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.
"501 Refusal or cancellation of visa on character grounds
…
(6)For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
…
(ii) the person's past and present general conduct;
the person is not of good character; or
…"
12.The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 324 it was said:
"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry."
And further whether there are any deficiencies in the Visa Applicant’s character that it is in the public good to refuse the visa (Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87).
13.As more particularly relevant to the present application, the Tribunal is mindful of statements by it in reasons for decision in other applications see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs. (AAT 9295, 8 February 1994)
14.A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction 21 issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.
15.Direction 21 as here relevant provides:
"PART 1 - APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.
1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ...
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …
1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).
…
Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
…
Subparagraph 501 (6)(c)(ii) - past and present general conduct
1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt or disregard for the law;
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
…
PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. … Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process, which takes into account all relevant considerations.
Primary Considerations
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or
children and the person under consideration, the best interests of the child or children.
Protection of the Australian Community
….
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)
The seriousness and nature of the conduct
2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:
…
(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
…
general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …
The best interests of the child
2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …
· in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"
finding as to matters of fact
16.Other than as set forth in the above chronology the factual situation relevant to this application as found by the Tribunal is as follows.
17.The Visa Applicant is by profession a dentist having graduated from Yerevan Medical Institute in 1989 and is practising at this time in a clinic in Yerevan. He is 37 years of age. The Applicant is employed as a marketing officer. She is 50 years of age.
18.It was in 1995 that the Visa Applicant first married. Whilst still so married, but having separated from his wife and an application for divorce having been made, in September 1995 he applied for a short-stay visa to enter Australia, his expressed intent being to visit his brother, an Australian citizen, who had resided in this country since about 1990. The visa was granted valid until 16 January 1996 with no permission to work. On 10 November 1995 he arrived in Australia, his divorce being granted on 27 January 1996. The Visa Applicant applied for an extension of time on his visa and this was granted valid to 16 July 1996 again with no permission to work.
19.Mr Vahan Vardanian, the Visa Applicant’s brother was friendly with the parents of Ms Pogossian to whom he introduced the recent arrival. So also was the Visa Applicant’s mother. The Pogossian family was ethnic Armenian and the parents seemingly were anxious to have their daughter marry a man from their country of origin. Some pressure was placed on the prospective married couple and on 21 March 1996, only five months after his arrival, the Visa Applicant married Ms Pogossian. It was in effect an arranged marriage. It would seem however that the marriage was not convivial even from early days. Ms Pogossian and her parents wanted the couple to live in the parents’ home. The groom, then 29 years old, wanted to live with his wife in a home of their own choosing. Added to this, his wife was on all accounts somewhat headstrong, wanted to stay out late at night socialising and soon created discord in the relationship. As a result of this situation the couple did not establish their own home and they did not reside together with her parents. Indeed they did not live together on a permanent basis only spending a “few nights there from time to time but never lived there” (T8/66). The wedding was well known throughout the Armenian community. The brother and the parents sought to keep the couple together.
20.It was only a few weeks after the wedding that the Visa Applicant sponsored by his wife, made application for a spouse visa. At the same time he was granted a bridging visa valid until 28 days after notification of a decision on the spouse visa application. The Visa Applicant says, which evidence I accept, that he and his new wife were short on money and at her request he approached the Respondent and sought formal permission to work. “We lodged application forms to have permission to work, I wanted to get normal job” (T8/66). He had in fact been working without permission part-time since the month before the wedding. On 17 July 1996 permission was granted for him to work, this permission to expire with that of the bridging visa. Together with his brother the Visa Applicant then applied to the Australian Taxation Office for a Tax File Number which was granted, the Visa Applicant thereafter using such number and lodging tax returns when required to do so. The efforts of the brother and the wife’s parents were to no avail and in due course the couple separated obtaining a divorce in August 1998.
21.There is an issue in this matter as to when the couple separated. It is maintained by the Respondent that Ms Pogossian informed an officer of the Respondent in January 1997 that the marriage had broken down, the parties separating in May 1996, but “it was hoped there would be a reconciliation or reunion”. The officer asked Ms Pogossian for the Visa Applicant’s then address to which she replied that she did not know it “at the moment” (S3/42). During a meeting with the same officer in March 1997 and when enquiring about the progress of his visa application, the brother acting as interpreter for the Visa Applicant, and in response to the above assertion of Natalia as related to him by the officer, the Visa Applicant denied that “the marriage no longer existed” since May 1996 and said that the marriage had existed “from the date of application” (S5/44). This was strictly true as the parties were not divorced until 1998.
22.In light of the brother’s evidence that he and Ms Pogossian’s parents tried to maintain the relationship, of Ms Pogossian’s conduct and of the application in July 1996 by the Visa Applicant for permission to work, it is most unlikely that separation had occurred or the “marriage no longer existed” in May 1996. Indeed it was not until January 1997 that Ms Pogossian sought to withdraw her sponsorship of the spouse visa application. Ms Pogossian was not called to give evidence as to this issue which was well known to the Respondent. Accepting the allegation said to have been made by Ms Pogossian suggesting a cessation of the relationship in May 1996 would entail not accepting the evidence of the Visa Applicant and his brother. There was not any reliable evidence called to refute their testimony. I do not accept that the relationship ceased in May 1996. I do not find that the Visa Applicant and his brother sought to mislead the Respondent in March 1997.
23.The Visa Applicant and Ms Pogossian had given as their address, in the spouse visa application and supporting documentation, the address of the parents. Indeed this had been the desire not only of Ms Pogossian but of her parents. The Visa Applicant, when not staying with Ms Pogossian, lived with his brother or friends. The Respondent on 14 March 1997, 11 days after the Visa Applicant’s attendance at the office of the Respondent, refused to grant the spouse visa. No mention of this possibility had been made on 6 March 1997 nor had the officer sought a new address from the Visa Applicant or his brother for the purpose of forwarding on any notice to them, a course that should have been suggested in light of Ms Pogossian’s statement as to the separation and she being unaware of the Visa Applicant’s then address. It should have been clear to the officer that the address on the application from and other supporting documentation was then no longer relevant.
24.Be that as it may, the Visa Applicant did not receive notice of the spouse visa refusal and did not become aware of the ceasing validity of the bridging visa or of the permission granted to him to work. He continued to remain in Australia until he left on 29 January 1998 having attended an office of the Respondent with the Applicant on 3 December 1997.
25.The Visa Applicant and the Applicant first met in late 1996 or early 1997. The Applicant had, with her daughter Maria, entered Australia in 1994; her mother, father and a sister having arrived in Australia some years before. She had with Maria become an Australian citizen in September 1996. At the time she first met the Visa Applicant she was living with her parents. Following her visit to Russia, in July 1997, to visit her daughter who was then having her first child and on her return to Australia she began to live with the Visa Applicant remaining so in homes owned by her until his departure.
good character
26.It is maintained on behalf of the Respondent that the Visa Applicant has been involved in activities indicating contempt or disregard for the law. Such activities and my findings in relation to them are as follows:
The provision of false and misleading information
a)The provision of false and misleading information in the first spouse visa application, that is the Visa Applicant stated that he lived with his sponsor Ms Pogossian, however he subsequently admitted that he never lived with her. I do not accept that the Visa Applicant did provide such false or misleading information. It was the clear intent of Ms Pogossian and her parents that the married couple should reside at their address. The visa application and supporting documentation was lodged shortly after the marriage. The Visa Applicant was not fluent in English. At that time there was no reason for the application to contain an address other than that of the Visa Applicant’s parents-in-law. It is true that the married couple did not reside together as man and wife at the home of the wife’s parents and did not set up a matrimonial home at any other address. However, on the evidence they did reside together from time to time.
b)The provision of false and misleading information to Immigration Officers on 6 March 1997, that is denying that the relationship between he and Ms Pogossian had broken down in May 1996.
I do not accept that the Visa Applicant provided false and misleading information to the Respondent’s officer in March 1997. The marriage was still existent and it is clear that the brother and the parents-in-law were endeavouring to maintain the marriage and project an image of the marriage in the Armenian community. It was not false for the Visa Applicant to make such statement to the Respondent’s officer at that time. I do not accept that the Visa Applicant or his brother sought to mislead the Respondent at that time.
Remaining in Australia for an extended period as an unlawful non-citizen
c)It is maintained that the Visa Applicant overstayed his bridging visa A and was an unlawful non-citizen for almost 20 months between April 1997 and December 1998. I am not satisfied that the Visa Applicant received notification from the Respondent as to the refusal of his spouse visa. The Respondent did not endeavour to locate the then current address of the Visa Applicant when it had an opportunity of doing so. It was advised by Ms Pogossian that the Visa Applicant was not residing at her parent’s home and that she did not at that time know his address. When he attended at the office of the Respondent and was interviewed by the same officer who had spoken to Ms Pogossian, no enquiry as to his then address was made. Nor was he informed as to the possible consequence of the information that had been provided by Ms Pogossian to the Respondent. Whilst the Visa Applicant clearly did remain in Australia for the extended period, I am satisfied that he was not aware of his being an unlawful non-citizen at that time.
Working in Australia without permission
d)The Visa Applicant did work in Australia for periods of time without permission. It was initially alleged by the Respondent that such working covered most of the period when he was residing in this country. It was only during the currency of the hearing that the Respondent became aware of an application having been made by the Visa Applicant for permission to work and this application being granted. The Visa Applicant also sought and obtained a Tax File Number. There is no evidence that he was seeking to avoid disclosure of the fact that he was working. I do not consider that his working prior to obtaining permission was serious misconduct in the circumstances of this matter. As I have earlier mentioned he was not aware of his application having been refused and was thus also not aware of the permission granted to him to work having concurrently ceased.
27.For the reasons set forth above I do not consider that the activities of the Visa Applicant indicate a contempt of or disregard for the law.
28.Further, there is evidence tendered before the Tribunal which I accept, as to the good character and standing of the Visa Applicant in the past and as at this time in his own professional and social community. There is evidence that the Applicant and the Visa Applicant both attended the office of the Respondent enquiring as to the then currency of his spouse visa application. There was no attempt on their part to not disclose their whereabouts. There was no belief on their part that the Visa Applicant was in Australia illegally or that his permission to work was not then current. The evidence as to recent good conduct includes references from people in Armenia and Australia as well as oral evidence given before the Tribunal. There is also evidence of the Visa Applicant giving moral and material assistance to others. He does not have a criminal record. Conduct the like of that alleged by the Respondent is inconsistent with the reputation of the Visa Applicant. It is further evident that the Visa Applicant and the Applicant have been separated from one another except for occasional meetings for five years and three months. They have however maintained the sincerity and genuineness of their relationship.
29.In all the circumstances of this matter and for the reasons and on the basis of the findings set forth above I do not accept that the Visa Applicant is not of good character.
discretionary relief
30.Whilst I am satisfied that the Visa Applicant is of good character I would comment on the discretionary factors, they having been argued extensively at the hearing.
31.I do not accept that the conduct of the Visa Applicant was seriously in default. There is no serious offence with respect to which he might “re-offend” and there is no such offence that would warrant deterrence or protection of the Australian community being relevant considerations. There is no issue in this matter that acting in such a way as to seek to mislead officers of the Respondent in relation to migration matters would constitute a serious transgression of appropriate conduct. However in this matter there has not been such a transgression. Thus there is not a real risk of conduct which might be the subject of appropriate criticism being committed by the Visa Applicant. I do not accept that the Visa Applicant engaged in conduct which was inappropriate in the circumstances and with the intent of extending his stay in Australia. There has not in this matter been an abuse of the immigration system or a disregard of the law or conduct unacceptable to the Australian community. The Visa Applicant is not a migration offender and conduct on his part was not such as to influence people who might contemplate being migration offenders.
32.I am satisfied that the Australian community would expect the Visa Applicant to be allowed to enter and remain in Australia. He did not attempt to falsely obtain a migration benefit.
33.There are, however, other considerations which weigh heavily in favour of the Visa Applicant. The Applicant’s parents whilst living in their own home are both in their eighties and dependent, to a measurable extent, upon assistance given to them by the Applicant. She cares for them and provides transport assistance as well as helping to maintain the home. Her sister lives with her family in Tasmania and is not in a position to provide aid. The Applicant says that she would be unable to leave her parents and would not be able to join her husband in Armenia if he were not permitted to enter Australia.
34.But more so the Applicant’s daughter and her husband are both full-time students attending TAFE courses respectively in Computer Website Management and Graphic Design. They have two children, a boy Ivan 6 years of age and a daughter Milena 4 years of age. Ivan is autistic and deaf. He attends a special school. The Applicant not only provides financial assistance to her daughter, but cares for and assists in the provision of appropriate assistance to Ivan. The support provided by the school would not be available to Ivan in Russia or in Armenia. Without her mother’s assistance the daughter and her husband would be hard-pressed to continue their studies and care for the children. Ivan especially would suffer by the absence of his grand-mother. It is clearly in the best interest of Ivan that his grand-mother remains in Australia and be able to assist in his care. It would not be in his best interest for his grand-mother to leave Australia to be with her husband in Armenia.
35.The Applicant is in a genuine relationship with the Visa Applicant. The refusal of a visa would cause measurable hardship to her. She has no choice other than to remain in Australia.
36.Even if the Tribunal had not been satisfied as to the character of the Visa Applicant it would, in light of the evidence before it, have exercised its discretion in favour of the Visa Applicant.
37.For the reasons herein before set forth the decision under review should be set aside and the matter remitted to the Respondent for further consideration with a direction that the application is not to be refused on the ground that the Visa Applicant does not satisfy the character test.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q. C., Deputy President
Signed: A. Krilis
AssociateDate/s of Hearing 29 and 30 March 2004
Date of Decision 20 April 2004
Representative for the Applicant Self
Solicitor for the Respondent Mr B Cramer
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