Lee and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 365
•7 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 365
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1214
GENERAL ADMINISTRATIVE DIVISION ) Re
William Lee
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date7 April 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Irina Lee passes the character test pursuant to s 501(6) of the Migration Act 1958.
..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 spouse visa – refusal of Visa Applicant’s visa application on character grounds – past and present general conduct – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – examination of the Visa Applicant’s immigration history – necessity to balance the protection and expectations of the Australian community against the hardship to the Applicant – found Visa Applicant had no knowledge of the false document lodged with the Department – Visa Applicant had acted on the advice of two migration agents – Visa Applicant passes the character test – decision of the Respondent set aside with a direction that the Visa Applicant passes the character test.
Migration Act 1958 ss499, 501, 501(6)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
REASONS FOR DECISION
7 April 2004 Mr RP Handley, Deputy President Summary
1. The Visa Applicant, Irina Lee, who currently resides in Russia, applied for a subclass 309 spouse visa for her and her two children to reside in Australia with her spouse, William Lee.
2. The Minister for Immigration and Multicultural and Indigenous Affairs, the Respondent, states that Ms Lee had previously provided false and misleading information and false documents in relation to two long stay business visa (subclass 457) applications, lodged in May 1999 and October 2001, and failed to comply with the conditions to which the business visa granted on 5 October 1999 was subject. The Respondent therefore refused Ms Lee’s application for a subclass 309 spouse visa on the ground that she failed the character test. This is the decision to be reviewed by the Tribunal.
Background
3. The Applicant, William (Bill) Lee, was born in Kurri Kurri, New South Wales, on 29 March 1957 and is aged 47. On 20 July 1996, he married Kerrie Lyn Bainbridge. That relationship ended in divorce on 10 June 2000 (T p134). They had one child, Madelaine Susan Lee, who was born on 16 December 1996, is now aged seven and lives with her mother. Mr Lee is employed as the National Sales Manager of Corporate Express.
4. Ms Lee was born in Novosibirsk, Russia, on 29 June 1972 and is aged 31. She married her first husband, Aleksandr Viktorovich Sandalov, on 20 April 1990. Their divorce was registered on 13 October 1993 (T p166). On 1 March 1995, Ms Lee married her second husband, Leonid Nestercvich Boiarinov (T p189). They had two children, Dmitriy Leonidovich Boiarinov, who was on born 3 September 1990 and is now aged 13 (T p161), and Anna Leonidovna Boiarinova, who was born on 6 September 1996 and is now aged seven (T p158).
5. On 5 February 1999, Ms Lee arrived in Australia with her then husband, Leonid Boiarinov, and their two children on a subclass 676 short-stay visitor visa issued on 31 December 1998. On 25 February 1999, Ms Lee lodged an application for a subclass 686 long stay visa which was subsequently granted on 3 May 1999 (T p3).
6. On 21 May 1999, Ms Lee lodged an application for a subclass 457 long stay business visa (T5 p28), including her then husband and two children (T p29). Her application was supported by a sponsorship by Human Pty Ltd, trading as Human Café Deli Restaurant of Coogee, with a position being offered to her as “cook/supervisor” on the basis that she was a qualified chef (T p38). Lodged with her application was a copy of a Diploma in Ms Lee’s name purporting to be from the St Petersburg College of Food Industry (T p81). On 5 October 1999, she was granted a subclass 457 business (long stay) visa, expiring on 5 October 2001, endorsed with a paragraph 8107 work limitation condition, requiring that she “not change employer or occupation in Australia without the permission of the Secretary” (T p67).
7. On 21 January 2001, Ms Lee returned to Russia with her daughter, Anna, her then husband and son remaining in Australia (T p352). On 11 March 2001 (T p352), Ms Lee returned to Australia leaving her daughter with her parents in Russia. Shortly afterwards, Ms Lee separated from Mr Boiarinov, taking her son Dmitriy with her.
8. On 30 March 2001, Mr Lee met Ms Lee at the Walker Street Bar in North Sydney, when he was there celebrating his birthday with a friend. He commenced his relationship with Ms Lee soon after (T p270). In late April 2001, Ms Lee and her son Dimitriy commenced living with Mr Lee at his home at Leichhardt. In May 2001, Mr Boiarinov returned to Russia where he has resided ever since.
9. On 2 October 2001, Mr Lee proposed marriage to Ms Lee. On 5 October 2001, Ms Lee lodged a second application for a subclass 457 business (long stay) visa, including her son, Dmitriy, as her dependent (T11 p71). With this application, Ms Lee lodged another copy of the Diploma from the St Petersburg College of Food Industry (T p82). Her application was sponsored by the Campari Restaurant, Elizabeth Street, Sydney, with the position offered being that of “chef” (T p85).
10. On 8 October 2001, a delegate of the then Department of Immigration and Multicultural Affairs requested that the sponsor, Campari Restaurant, within 28 days from the date of the letter, provide more information to demonstrate that they met the criteria for a sponsoring organisation (T13 p94). No further information was provided.
11. On 24 October 2001, Ms Lee’s marriage to Mr Boiarinova was dissolved and the divorce registered on 6 November 2001 (T p171).
12. On 20 November 2001, Ms Lee was informed that her subclass 457 visa application had been refused and that her bridging visa would cease in 28 days, whereupon she would become an unlawful non-citizen if she remained in Australia after that time (T15 p99).
13. On 16 December 2001, Mr Lee and Ms Lee were married by a civil celebrant at Blaxland in the Blue Mountains (T p209). On 18 December 2001, Ms Lee and her son Dmitriy departed Australia (T p354). On 8 April 2002 (T p220), Ms Lee lodged a subclass 309 spouse visa application at the Australian Embassy in Moscow (T16 p104). Ms Lee’s application included her son Dmitriy and daughter Anna and was accompanied by a “Permission for Children’s Departure Abroad” dated 2 March 2002 signed by the children’s father, Mr Boiarinov (T p211). Her application stated her usual occupation as that of “nurse” (T p107).
14. On 10 April 2002, Ms Lee was interviewed in relation to her spouse visa application at the Australian Embassy in Moscow (T p225). On 10 December 2002, a delegate of the Respondent wrote to Ms Lee advising her that the Respondent was considering refusing her visa and inviting her to comment (T p245). Ms Lee’s then solicitor, having sought and been granted an extension of time to respond, put forward submissions on Ms Lee’s behalf on 5 March 2003 (T p262). On 9 June 2003, a delegate of the Respondent decided to refuse Ms Lee’s application on the ground that she did not pass the character test and that the discretion in s 501(1) of the Migration Act 1958 (“the Act”) should not be exercised in her favour. On 28 July 2003, Mr Lee lodged an application for a review of this decision with the Tribunal and an application for an extension of time for the lodging of this application which was subsequently granted on 20 August 2003.
15. At the hearing, Mr Lee was self-represented and the Respondent was represented by Kirsty Howey, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by Mr Lee. Mr Lee gave evidence in person and Ms Lee gave evidence by conference telephone from Russia.
Relevant Law and Policy
16. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
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; …
17. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”.
18. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
19. The issue for the Tribunal to determine in this case is, therefore, whether Ms Lee is not of good character having regard to her past and present general conduct. If the Tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa.
Evidence
20. Ms Lee said that after she finished High School in Kirov, she enrolled in Medical College and studied nursing, graduating as a nurse after three years in 1990. She then applied to study medicine, passed a competitive exam, and gained a place in a University Medical School. However, she discontinued her studies because she decided this was not her chosen field and because she was married and had a young child to care for. She worked as a nurse for a short period – less than a year – but her former husband did not want her to work or indeed to study. She did, however, also undertake a secretarial course.
20. Ms Lee said that in about 1997, her former husband, Mr Boiarinov, established a business in Indonesia buying and selling clothing. Ms Lee joined him there with their two children in 1998. However, because of the political situation in Indonesia it became dangerous for them to remain there, so her husband decided that they should move to another country. They obtained visitor visas to visit Australia and arrived on 5 February 1999. Being favourably impressed with Australia, they decided to try and stay. Her husband therefore set about making the necessary arrangements. He met some Russian migrants who introduced him to a migration agent, Dr Babak Koravi of LCJ Migration Services of Edgecliff (registration number 59259).
21. Mr Boiarinov went to meet Dr Koravi with a friend who spoke some English. Dr Koravi did not speak Russian and Mr Boiarinov did not speak English. Even so, Ms Lee said Mr Boiarinov told her he did not understand what was happening, but he trusted Dr Koravi and followed his advice. Ms Lee was not present at this first meeting with Dr Koravi. She also spoke no English at the time and her husband, as was customary in Russia, considered it “not right” for a wife to engage in the business of a husband. He is a conservative person and would have resented her involvement, which would only have led to arguments between them. So he made all the arrangements and told her very little. Ms Lee was used to this and trusted her husband to do what was necessary. She was busy looking after their two young children, Anna being only two years old.
22. Dr Koravi asked for a substantial sum of money for his services, and told them to leave everything to him, not to worry and not to ask too many questions. Ms Lee said she only saw him twice at this time when she went to his office to sign papers. He did not explain anything to her and she did not attempt to read the forms, although she noted that some of the forms she signed had not been completed. Nobody explained anything to her and she was not really interested. She had her children to look after. At the time, it seemed quite normal to her. She trusted her husband and he in turn trusted Dr Koravi. The visa application was made in Ms Lee’s name because Dr Koravi thought it was better for her to apply since she was younger than her husband.
23. Ms Lee said when the visa was granted, she did not see any correspondence from the Department. All she saw was her passport which her husband brought home with a visa in it. She was not aware of the condition to which the visa was subject requiring that she not change her employer or occupation without obtaining the written permission of the Secretary. She was not aware of the false diploma, allegedly from the St Petersburg College of Food Industry, which was lodged with her application. The first time she became aware of this was in May 2001. Ms Lee confirmed that she is not a qualified chef and has never studied to become one.
24. Ms Lee said her relationship with Mr Boiarinov began to deteriorate with his frustration at not finding work, with language difficulties and with his beginning to drink heavily. She said they had previously had marital problems. Ms Lee made an effort to learn the language and got work cleaning friends’ houses. Then she got a job in a modelling agency and stopped the cleaning because she could not manage both. Her earnings from modelling varied with how much work she did. It depended on her attracting work, which involved competing with other models at casting sessions. Ms Lee said her earnings from modelling averaged about $300 a week. It was not a lot and, if she had been living alone, not enough to support her and the children. She continued to do this work until she left Australia to return to Russia on 18 December 2001.
25. Mr Boiarinov also became jealous of Ms Lee’s relative success, their marital problems got worse and they were arguing a lot in the presence of the children. Anna, in particular, was affected by this. Ms Lee decided to take Anna back to Russia for her to be cared for by her mother. She left for Russia with Anna on 21 January 2001, returning on 11 March 2001. On her return, Ms Lee separated from her husband and she and her son Dmitriy went to live in a rented room in a friend’s house.
26. On 30 March 2001, Ms Lee was with a friend at a restaurant/café in North Sydney. Mr Lee and his friend were at an adjacent table and invited Ms Lee and her friend to join them. A couple of days later, Ms Lee phoned Mr Lee and they started going out together – initially mostly to restaurants or cafes. He was very patient and would explain if she did not understand what he was saying. Their relationship developed quickly even though her English was still poor. She told him from the beginning of her family problems and made no secret of her immigration status. She wanted Mr Lee to understand that she was not trying to obtain permanent residence through him. However, she did not know at that time of her illegal status. She thought she had a normal working visa and that, in due course, she could apply for a visa to remain permanently in Australia.
27. Although she was separated from Mr Boiarinov, Ms Lee still had a key to the house where he continued living and she kept some of her things in a room there. An incident occurred when she was at the house on 10 April 2001 when Mr Boiarinov threatened her and she called the police. Mr Lee provided copies of the Police Reports from Hurstville Area Command for this incident, recorded as domestic violence, which confirms Ms Lee’s account. The police took no further action when Ms Lee asked them to leave, Mr Boiarinov having first left to stay at a friend’s house. Not long afterwards, Mr Boiarinov returned to Russia.
28. In late April 2001, Mr Lee, knowing of Ms Lee’s living arrangements, and their relationship having become serious by this time, invited her and Dmitriy to move in with him at his rented house in Leichhardt.
29. Mr Lee was brought up in the Hunter Valley, qualified as a butcher and then worked as a first aid officer in the coal mining industry. Later, he moved to Sydney, working in sales. He and his former wife were married in 1996 and have a daughter, Madelaine, who is now aged seven. Although he and his former wife were divorced in 2000, they still have a good relationship and he and Madelaine are very close and spend a lot of time together. Madelaine lives with her mother but spends every other weekend with Mr Lee and stays at his house overnight on most Tuesdays and Thursdays. He will take her to school next day. Mr Lee also sees Madelaine for a short period after work – an hour or two – on most other days, having rented a house in the same street as his former wife in Sans Souci so that he can be close. Mr Lee said he had also moved previously to a rented house in Lewisham to be near Madelaine when his former wife was living there.
30. Apart from paying “child support” for Madelaine, Mr Lee said he also pays for her education and for health and dental care. When Madelaine is staying with him at the weekend, his parents always come down from the Hunter Valley so that they can all be together.
31. Not long after Mr Lee and Ms Lee commenced going out together, Mr Lee and Madelaine and Ms Lee and Dmitriy all met up in Darling Harbour. Mr Lee said he “clicked” with Dmitriy. After Ms Lee and Dmitriy moved in with Mr Lee, Dmitriy came to regard him as a father figure and Dmitriy also established a good relationship with Mr Lee’s parents, for whom Dmitriy became an adopted grandson. Mr Lee said he used to meet with Dmitriy’s school teachers to discuss Dmitriy’s progress.
32. Mr Lee said he and Ms Lee are very much in love – their’s is a genuine marital relationship and they are a happy family. When they were together, they visited his friends and Ms Lee was introduced into the Australian way of life. In the same way, she introduced him to the Russian community in Sydney.
33. However, not long after Ms Lee moved in with Mr Lee, she heard from her parents in Kirov that Mr Boiarinov, who had returned to Russia, had taken Anna from them against their will. Ms Lee then received a telephone call from Mr Boiarinov to tell her what he had done. He refused to give her a contact address and telephone number so she was unable to speak with Anna. Mr Boiarinov told her that she would not be able to obtain a permanent visa to remain in Australia. He had phoned Dr Koravi before leaving, who advised Mr Boiarinov that he would not be able to apply for such a visa for them because he had to “bend the law” to obtain the previous visa. So he could no longer help them.
34. Mr Lee said Ms Lee was distraught at Mr Boiarinov’s taking Anna and not being able to speak with her. Ms Lee was phoning Russia almost every day. It was at least six to eight weeks before she was able to contact Anna again. Mr Boiarinov eventually returned Anna to her grandparents because she became sick and he could not cope with a sick child on his own. Ms Lee’s parents continued to allow Mr Boiarinov to see Anna, but he did not come often.
35. Ms Lee was asked why she did not return to Russia when Anna was taken by Mr Boiarinov. She said he told her that if they were to get divorced, then they should split the children between them. Anna could live with him and Dmitriy with her. He threatened that if she tried to get Anna back, Anna and her parents would suffer for it. Ms Lee said she did not know what to do. Her child had been “kidnapped”, she had learned that her visa had been obtained under false pretences, and the man she loved was in Australia and she did not want to lose him. She also knew both her children should be with her. She said she was “in a state” and not thinking straight. All she wanted was to stay with Mr Lee and be a normal family.
36. Mr Lee said Anna’s disappearance and Ms Lee’s distress had an adverse effect on their relationship. Ms Lee went to see an Eastern suburbs doctor for psychological counselling. Mr Lee was out of work at the time, money was very tight and they could not afford the airfares for Ms Lee and Dmitriy to return to Russia.
37. Ms Lee said after Mr Boiarinov phoned her, she went to see Dr Koravi to obtain her file papers. Dr Koravi explained things to her in general terms and she was able to interpret some of the documents herself. Amongst the file papers, she found a copy of the false diploma. It was a shock to discover that her visa was bogus and that she was in Australia unlawfully, although she did not then realise how serious her position was. Dr Koravi confirmed that he could not handle her case any more.
38. Mr Lee said he knew very little about immigration at that time. When Ms Lee told him what had happened, he went with her to see Dr Koravi. Until she received the file papers from Dr Koravi, Ms Lee did not know Mr Boiarinov had organised a false diploma or that her visa was not lawful. Having seen Dr Koravi, they went to see two other migration agents for advice. Mr Lee paid them for this advice which essentially was to keep on relying on the false diploma.
39. The second migration agent they consulted, John Davies (registration number 9256446), submitted a second long stay temporary business visa application on her behalf, lodged on 5 October 2001, again relying on her qualification as a chef from the St Petersburg College of Food Industry. Mr Davies was aware that this was false, and both Ms Lee and Mr Lee said they were aware that the application contained false information. Mr Lee noted that the sponsor for the second business visa application – the Campari Restaurant in Elizabeth Street, Sydney, was genuinely willing to employ Ms Lee and she was willing to work there. The contact with the restaurant was through her Russian friends in Sydney. Ms Lee said nobody warned her of the seriousness of her conduct and the consequences. She was still speaking to Anna every day on the phone. Anna was continually crying and Ms Lee felt emotionally crushed. Ms Lee acknowledged that she made a serious mistake. But she could not then afford the airfares to return to Russia and she wanted to leave Australia with a valid visa so that she could later return. Mr Boiarinov was also still very angry and continued to threaten her on the phone. It was probably better to wait awhile before she returned to Russia in order to allow things to settle down.
40. Mr Lee admitted that he was naive and did not realise that the proper course was for Ms Lee to go to the Department and explain what had happened. He also was not “thinking straight” and was worried about losing Ms Lee. Instead, when Ms Lee’s business visa was refused on 20 November 2001, he advised her to return to Russia and apply for a visa at the Australian Embassy in Moscow setting out the truth. Ms Lee said she knew she had to return to Russia anyway because of Anna. Mr Lee said that even at this time, he was still short of money and had to borrow money to pay for Ms Lee’s and Dmitriy’s airline tickets to return to Moscow.
41. Mr Lee said he and Ms Lee had spoken about marriage early in their relationship although he thought Ms Lee probably did not take this seriously at first because of the aftermath of her previous relationship. He said their motivation for getting married on 16 December 2001 (his daughter’s birthday) was to make a commitment to one another by marriage. It was not so that Ms Lee could apply for a spouse visa. Ms Lee said she was very happy when Mr Lee proposed marriage. By this time, she knew him very well and that whatever happened, they would be together.
42. Since Ms Lee returned to Russia with Dmitriy on 18 December 2001, they have kept in touch by phone and letter. Mr Lee said he has over $3,000 worth of phone cards and telephone bills. They speak on the phone about every second day. Ms Lee said sometimes they speak on the phone for several hours. Mr Lee even sends her verse. Their’s is a romantic relationship and they joke that one day they might write a book about it.
43. Mr Lee said he booked a trip to visit Russia in 2002 but, two days before he was due to leave, Ms Lee’s ex-husband turned up at her parents’ flat and made threats and Ms Lee advised Mr Lee not to come. She said her ex-husband was very jealous and she was concerned for Mr Lee’s life. Mr Boiarinov is a rather unstable man and she thought he might attack Mr Lee. However, in January 2004, she flew to Paris to meet Mr Lee and they spent a week together there. “It was a dream” – as if their two years apart had vanished – and very romantic. Mr Lee said because of the cost, he could only afford a week and could not afford to take the children too. He said his relationship with Ms Lee is “still rock solid”.
44. Mr Lee said while in Paris, they discussed their plans for the future and what they will do if this application is unsuccessful. One possibility is that they might try and move to Paris. Mr Lee had an interview at his employer, Corporate Express’s office in Paris. He estimated that he has about a 50% chance of getting a job there – even though he does not speak French.
45. Currently, Ms Lee and her two children are living with her parents in their two room, 36 square metre flat in Kirov. Ms Lee also has a sister living in Kirov. Mr Lee is supporting his wife and her two children financially. Over the period of their separation, he has sent her in excess of Aus$25,000. Ms Lee said when she returned to Russia, she hoped to be able to establish normal relations with her ex-husband and she has never prevented him seeing their children. However, he does not express any great interest in them. He sometimes visits and sometimes helps the children with money, but often the children do not see him for a month or even two months if he is away in Moscow. Ms Lee said she thinks Mr Boiarinov is on the verge of establishing a new family. She tries to avoid arguments with him and he has calmed down with the lapse of time. He knows that she cares for the children well and understands her situation and that she will be happier with Mr Lee. That is the reason for his being willing to let the children go to Australia. Ms Lee said Anna is still affected by her experiences and whenever Ms Lee leaves the flat, Anna asks when she will be coming back.
46. Ms Lee said when she arrived back in Russia, she thought she would be able to return to Australia almost straight away. When she realised this was not going to happen, she sat the University entrance exam. Having passed this, she enrolled in a degree in languages and is studying English and German. She enjoys studying and her English has improved a lot. However, the work load is heavy: she is at the University from 8am until 3pm and the rest of the day is spent at home looking after the children. Ms Lee said if she is able to return to Australia, she would like to continue her studies. She wants her husband to be proud of her. Mr Lee noted that his wife also speaks Indonesian and some French and hopes that her current studies will enable her to get a job as an interpreter and translator.
47. Mr Lee said relocating to Europe would be very difficult, even though his wife has said she will move to wherever she has to in order to be with him. In particular, Mr Lee does not want to be separated from his daughter, Madelaine, with whom he has a close relationship. However, if he has to choose between his wife and his daughter, he will choose his wife. Nevertheless, Mr Lee hoped that it would not come to this and that compassion would be shown in relation to the mistakes they have made. Mr Lee said he now has a good job as National Sales Manager with Corporate Express and his career is advancing. His home is in Australia.
48. Ms Lee said when she returned to Russia, she planned to tell the Australian Embassy what had happened when she lodged her spouse visa application. She and Mr Lee wanted to start a new life and could not keep living a lie. It was only when they started the spouse visa application process that they realised how serious her situation was. Ms Lee said she realises what she did was wrong and asks for forgiveness – it has been a lesson for the rest of her life. However, she has now been punished for what happened, having been separated from Mr Lee for two years. It has been a time of constant expectation. Her children sense this. She does not want another temporary situation. She wants to live in one place as a normal family. Her husband could not survive in Russia. Not knowing the language, he would have difficulty getting a job and would be unable to support them. Her ex-husband could also still cause problems.
49. Mr Lee submitted various supporting documents. These include the following:
· A personal reference for Ms Lee from Anatoli Romaschewsky of Rockdale, dated 1 October 2003, who knew Ms Lee during her time in Australia, attesting to her honesty and good character.
· A personal reference for Ms Lee from the Director of the Institute of Linguistics at the Vyatka State Humanitarian University, dated 17 January 2004, confirming that Ms Lee’s specialisation is Translation and Translators – English and German, and attesting to her being a reliable and responsible student:
Kind, calm and well balanced. Always ready to help her peers. She enjoys respect among all who know her.
· An Australian Taxation Office Notice for the year ended 30 June 2001, showing Ms Lee’s taxable income as $3,119.
· Two payment summaries for Ms Lee for the year ended 30 June 2002: one showing gross payments of $2,060, with tax paid of $412, and a second showing gross payments of $1,375, with tax paid of $305.
· A medical certificate for Mr Lee, dated 6 February 2004, issued by Dr Ben Anderson, stating that Mr Lee will be unfit for work from 6 February 2004 to 6 March 2004, and a letter to the Tribunal from Dr Anderson, dated 12 March 2004, stating:
Mr Lee has been a patient of mine since 1990. He attended this practice on 6/02/04 presenting with symptoms of depression and suicidal ideation and heavy drinking related to the depression. He stated the depression had been present for 12 months and related to the ongoing uncertainty of his immigration application and the possibility of having to leave his daughter. He was commenced on an antidepressant Cipramil and advised to cease alcohol intake. I have seen him today and he has ceased drinking but his depression has not improved. I do not think this will improve until his immigration application has been finalised. I will continue to offer psychological support.
Mr Lee confirmed that he has been seeing Dr Anderson for counselling and his drinking is now under control. He said he had to take this month off because he could not cope.
·Letters from Winter First National Real Estate offices in Randwick and Carlton, dated 24 July 2001 and 27 July 2001 respectively, stating that Mr Leonid Boiarinov had left rented premises managed by them leaving rental arrears of $1,242.20 and $688. Mr Lee said he and his wife cleared Mr Boiarinov’s debts after he returned to Russia.
·A statement of Leonid Boiarinov dated 18 February 2004. Mr Boiarinov said that he paid the migration agent Babak Koravi the sum of Aus$40,000 – an initial payment of $20,000 and two later payments of $10,000 each for his advice and assistance in obtaining visas for Mr Boiarinov and his family. Mr Boiarinov said his then wife was unaware of what was happening and Mr Boiarinov trusted Dr Koravi. They signed documents without notice of their contents. Mr Boiarinov also said the following of his children’s situation:
I should like to advert to the question concerning our two underage children Boyarinova Anna Leonidovna and Boyarinov Dmitry Leonidovich. In my opinion, since such tragedy as a divorce took place and our family broke long ago, it will be better for the children to stay with their mother as they are very attached to her and love her very much. I am much older than my former wife and have problems with my health, my financial position is unstable and I cannot accept responsibility for bringing up my children. My former wife is a good mother and I fully trust her to take care of our children. Our personal relations do not matter here, I am trying to think exceptionally about my children’s well being and I am sure they will be happy if their mother is happy. But it is impossible till she lives here waiting for an opportunity to leave for her husband’s place. I see that she takes the situation to heart and our children can not help sharing her bad spirits. Naturally, I want this problem to be positively solved at last. I do not mind my former wife’s going to her husband in Australia together with our children and I hope it will be the best solution for all of us.
· A statement by Ms Lee’s parents dated 12 February 2004 describing the circumstances of Mr Boiarinov removing Anna from their care, against their will, “around mid May 2001” and his threats of violence if they reported this to the police. They also describe the effect on Ms Lee, her current situation, the effect on Anna “who now reacts badly to her [Ms Lee’s] absence, even for a short time”, and Dmitriy’s close relationship with Mr Lee.
Application of the Law and Findings
50. The first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Ms Lee passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 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. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an Applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
51. In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999) FCA 1277).
52. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Lee, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) to not refuse the grant of a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
53. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9 (a) and 1.9 (b) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law, including breaches of immigration law (paragraph 1.9 (a)), or 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 (paragraph 1.9) (b)).
54. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
55. Before making a decision on whether Ms Lee passes the character test, it is appropriate that the Tribunal set out its findings of fact. The Tribunal finds that Ms Lee did not knowingly provide false or misleading information or a bogus document in connection with her first business visa application lodged on 21 May 1999. This application was prepared by a migration agent, Dr Babak Koravi, to whom Ms Lee’s then husband, Leonid Boiarinov paid, he states, $40,000. The Tribunal accepts Ms Lee’s evidence that she knew nothing of the application, relying on her husband to make the necessary arrangements. However, Ms Lee did sign the relevant documents and to that extent must accept responsibility for their content, although the Tribunal accepts that she had no knowledge of that content. Ms Lee’s English was poor at that time and Dr Koravi appears to have made no attempt to explain the documents to her.
56. The Tribunal accepts that Ms Lee was not aware that her visa was subject to a condition that she not change her employer or occupation without the permission of the Secretary. While initially undertaking house cleaning work, Ms Lee obtained work as a model and it was this work that she continued to undertake until departing Australia. Ms Lee obtained a Tax File Number and paid tax as required. Her income from this work was very modest, estimated by her to average about $300 per week.
57. The Tribunal finds that Ms Lee did not become aware of the false basis of her visa or bogus certificate from the St Petersburg College of Food Industry until about early May 2001. By this time her marriage to Mr Boiarinov had broken down, they had separated and he had returned to Russia. Ms Lee had previously returned to Russia in January 2001 to leave her daughter Anna in the care of her parents. Having met Mr Lee in late March 2001, Ms Lee had moved in with him with her son Dmitriy in late April 2001.
58. Ms Lee became aware of the basis of her visa when Mr Boiarinov phoned her from Russia to tell her that he had taken their daughter Anna to live with him. This was done without Ms Lee’s consent and against the will of her parents. Mr Boiarinov told Ms Lee that Dr Koravi had informed him that he had “bent” the law in obtaining the business visa and could no longer assist them. Mr Boiarinov said she would not now be able to obtain permanent residence. As a result of this phone call, of Mr Boiarinov’s taking Anna, and of his threats, Ms Lee was distraught. She went to see Dr Koravi and obtained her file papers including the bogus certificate. Dr Koravi confirmed that he would not assist her.
59. Ms Lee discussed the situation with Mr Lee and they went to see two other migration agents for advice. The advice given by both agents was to lodge another business visa application, relying on the bogus certificate. A second business visa application was therefore prepared by the migration agent John Davies, including the offer of sponsorship from the Campari Restaurant in Elizabeth Street, Sydney, with the documents lodged with the application including the bogus certificate from the St Petersburg College of Food Industry. The Tribunal accepts Ms Lee’s evidence that the Campari Restaurant was genuinely willing to employ her – she had this offer through her contacts in the Russian community in Sydney – and that she was willing to work there. The Tribunal also accepts Mr Lee’s and Ms Lee’s evidence that given the advice they had received, they did not realise the seriousness of the immigration misconduct involved in making this application.
60. The Tribunal finds that during the period leading up to the lodging of the second business visa application, both Ms Lee’s and Mr Lee’s lives were in a state of turmoil. They were very much in love and not wanting to lose one another. Ms Lee was worried about her daughter Anna in Russia, despite Mr Boiarinov returning Anna to Ms Lee’s parents when, after six to eight weeks, he found he could not cope with her being sick. Ms Lee was concerned, in particular, about Mr Boiarinov’s threats. Mr Lee was also out of work and they were having difficulty managing financially.
61. Both Ms Lee and Mr Lee now acknowledge that they made a serious mistake. Mr Lee said he did not realise, given the migration agents’ advice, that the best course would be to inform the Department of what had happened. When the second business visa application was refused, they decided that the best course was for Ms Lee to return to Russia and lodge a spouse visa application there, with the intention of revealing the truth of everything that had happened. Ms Lee would, in any event, need to return to Russia since Anna was being cared for by her parents. Both Ms Lee and Mr Lee asked for forgiveness for their mistakes and for Ms Lee’s application to be treated with compassion.
62. Mr and Ms Lee were married in the Blue Mountains on 16 December 2001. The Tribunal has no doubts about the genuineness of their relationship. The Tribunal also finds that they have established a close-knit extended family including Ms Lee’s son Dmitriy and Mr Lee’s daughter Madelaine. Mr Lee has not yet had face to face contact with Ms Lee’s daughter, Anna, although they have spoken on the phone. The Tribunal accepts that Mr and Ms Lee’s separation for a period of over two years, excepting the one week holiday in Paris in January 2004, has been very difficult for both of them.
63. An examination of Ms Lee’s spouse visa application indicates that the contents are true and correct. She also answered truthfully all the questions asked by the officer who interviewed her in relation to her application at the Australian Embassy in Moscow.
64. In the Tribunal’s view, Ms Lee’s conduct does not indicate contempt or disregard for the law. She and Mr Lee made a mistake, albeit a very serious one, when they relied on the advice of two migration agents and retained the services of one of those in assisting Ms Lee to make a business visa application which contained false information as to the nature of her qualifications and was accompanied by a bogus certificate. However, there were strong mitigating circumstances: Ms Lee’s emotional turmoil over the welfare of her daughter Anna back in Russia; her wish to remain in Australia with Mr Lee, whom she loved; the dilemma of how to extricate herself from the immigration problems caused by her husband and the migration agent, Dr Koravi, which she did not cause, although she signed the first business visa application forms; and the advice of the two migration agents on which she and Mr Lee chose to rely.
65. The Tribunal notes that it was Ms Lee who revealed what had occurred when she was interviewed at the Australian Embassy in Moscow. She and Mr Lee had decided that it was important that the whole truth should be told. The Tribunal was impressed by the frank and honest way in which they gave evidence to the Tribunal. The Tribunal also notes the supportive character references provided for Ms Lee, some contained in the T Documents and others submitted by Mr Lee. Although these references do not refer to Ms Lee’s immigration misconduct, they are, nevertheless, consistent with the favourable impression formed by the Tribunal from hearing the evidence and making a close examination of the file documents.
66. Both Ms Lee and Mr Lee have expressed their contrition for what happened and have asked for forgiveness and for compassion. The Tribunal has no doubt that the period of separation since Ms Lee returned to Russia has been a very difficult one for them. As Ms Lee acknowledged, she has learned a lesson for life.
67. In the Tribunal’s view, Ms Lee’s character, in the sense of her enduring moral qualities, is not so deficient as to show that it is for the public good to refuse entry. She made a serious mistake; she has acknowledged that mistake and suffered the consequences. However, her past conduct is not such as to satisfy the Tribunal that she is not of good character pursuant to s 501(6)(c)(ii) of the Act. She therefore passes the character test and the decision under review should be set aside and remitted to the Respondent with a direction to that effect.
68. The Tribunal notes that had it decided otherwise, there are strong grounds to support the exercise of the residual discretion under s 501(1) of the Act. Having regard to the primary considerations to which the Tribunal is referred by Direction No 21, in the Tribunal’s view Ms Lee is no threat to the Australian community which would take a compassionate view of her and Mr Lee’s situation given the circumstances of the case. The most compelling of the primary considerations is, however, the best interests of the children. In the Tribunal’s view, the best interests of Ms Lee’s children, Dmitriy, aged 13, and Anna, aged 7, are to be together with their mother and Mr Lee in a normal family relationship in Australia. Dimitriy has already established a close relationship with Mr Lee. Anna has not had that opportunity. However, given her experience with her father, it is likely that her best interests will be served by living with her mother in a loving family situation. All the indications are that this can happen. Their father, Mr Boiarinov, has not taken a significant interest in the children and has given his consent to them migrating to Australia with their mother for the reasons given in his statement.
69. Mr Lee also has a daughter Madelaine, who is aged seven. She has a close relationship with him facilitated by his continuing to maintain a good relationship with his former wife. Mr Lee takes an active part in Madelaine’s life and it is obviously in her best interests that this should continue and that he should remain in Australia.
70. With regard to the other considerations, these also support the exercise of the s 501(1) discretion. Mr Lee’s home is in Australia, and he has a good job and good career prospects. He would lose all of these if he were to move overseas. Both he and Ms Lee have suffered significant hardship in the past two years. In the Tribunal’s view, their separation has been punishment enough and they should be permitted to lead a normal family life in Australia where both can make a significant contribution to the community.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 23 March 2004
Date of Decision 7 April 2004
Representative for the Applicant Self represented
Representative for the Respondent Ms K Howey, Solicitor
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