Llacsa and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 726
•8 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 726
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/29
GENERAL ADMINISTRATIVE DIVISION ) Re
Pamella Llacsa
Applicant
And
Minister for Immigration and Multicultural and Indigenous affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date8 July 2004
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 spouse (provisional) visa – refusal of visa on character grounds – Visa Applicant concedes that he fails the character test – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – examination of the Visa Applicant’s immigration misconduct including the making of false statements, remaining in Australia illegally and working without permission – necessity to balance the expectations and protection of the Australian community against any hardship to the Applicant – held the misconduct of the Visa Applicant in making false and misleading statements until found out is of a very serious nature – false and misleading statements were maintained even to the Applicant – held the community would expect that the Visa Applicant not be granted a visa – Visa Applicant’s conduct outweighs the hardship to the Applicant – decision of the Respondent is affirmed.
Migration Act 1958 ss 499, 501, 501(1), 501(6)(c)(ii)
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
8 July 2004 Mr RP Handley, Deputy President Summary
1. The Visa Applicant, Jose Luis Llacsa Vilca, applied for a subclass 309 spouse (provisional) visa to reside in Australia with his spouse, Pamella Llacsa.
2. The Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Llacsa Vilca had previously provided false and misleading information and false documents in relation to a business visa, made false and misleading statements in relation to a protection visa and bridging visa, remained in Australia unlawfully, and worked without permission contrary to his visa conditions. The Respondent therefore refused Mr Llacsa Vilca’s application for a subclass 309 spouse visa. This is the decision to be reviewed by the Tribunal.
Background
3. The Applicant, Pamella Llacsa, was born in Annandale, Sydney, on 26 March 1945 and is aged 59. On 4 December 1989, she married Kwai Wing Wong, the marriage ending in divorce on 2 April 1994 (T p154). On 22 October 1998, she married Diego Antonio Docobo-Ceroni, the marriage ending in divorce on 2 April 2003 (T p154). No children were born of either marriage. Ms Llacsa has an adult daughter, Sandie Richards, aged 40, from a previous relationship (T p218) who has three children. Her son from that relationship died from cancer in 1987 at the age of 25.
4. Mr Llacsa Vilca was born in Lima, Peru, on 21 February 1965 and is aged 39 (T p150). On 15 March 2001, he arrived in Australia on a business (short stay) visa valid until 15 June 2001 (T p7 and p266). On 14 June 2001, he was granted a visitor visa valid until 14 September 2001, subject to a no-work condition (T pp266-267).
5. On 7 April 2001, Mr Llacsa Vilca met Ms Llacsa at the Spanish Club in Sydney (T p156) and they commenced a relationship in December 2001 (T p219).
6. On 7 September 2001, Mr Llacsa Vilca lodged an application for a protection visa (T4 p44) claiming that he had witnessed the kidnapping, by a military group, of the Director of the magazine company, New Time Magazine, for which he was working at the time and that he was threatened that if he identified the kidnappers he would be killed. He also claimed that his parents’ house had been broken into by four men of “military appearance” who had beaten his parents. The men told his parents that they were looking for Mr Llasca Vilca and would kill him (T pp72-73). On 14 September 2001, he was granted an associated bridging visa A, subject to a no-work condition (T p8).
7. On 28 November 2001, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) On-Shore Protection Unit refused Mr Llacsa Vilca’s protection visa on the ground that he had not provided any evidence in the form of a police report as to the kidnapping, there had been changes in the government since his claimed problems, independent country information did not indicate that Mr Llacsa Vilca would be unable to access effective State protection, and the delegate was not satisfied that Mr Llacsa Vilca’s fear involved systematic and discriminatory conduct or that his fear was well-founded (T p86). On 28 December 2001, Mr Llacsa Vilca lodged an application for a review of this decision by the Refugee Review Tribunal (“RRT”) which on 24 February 2003 affirmed the decision refusing the protection visa application (T p88). On 14 March 2003, Mr Llacsa Vilca was informed of this decision (T6 p87) and on 25 March 2003, he sought Ministerial intervention (T7 p94). On 24 April 2003, he was granted a bridging visa E subject to a no-work condition, valid until 24 July 2003, pending the determination of his application for Ministerial intervention (T p98-100).
8. On 29 May 2003, Departmental Compliance Officers detected Mr Llacsa Vilca working illegally on a building site in Sydney and he was arrested and detained at the Villawood Detention Centre (“Villawood”). On the same day, his bridging visa E was cancelled for breach of the no-work condition to which the visa was subject. On 2 June 2003, Mr Llacsa Vilca applied for a further bridging visa E and, on 17 June 2003, this was granted, subject to a no-work condition and on lodgement of $10,000 security (T p110).
9. On 2 July 2003, Ministerial intervention was refused (T13 p143). On 7 July 2003, Mr Llacsa Vilca and Ms Llacsa were married by a civil celebrant at Brighton le Sands near Sydney (T p188). On 13 July 2003, Mr Llacsa Vilca departed Australia (T p219). On 10 July 2003 (T p165), Ms Llacsa’s migration agent lodged a subclass 309 spouse visa application at the DIMIA’s Sydney City Office (T p165), to be forwarded on for lodgement in Chile. On 17 July 2003, the Australian Embassy in Santiago, Chile, acknowledged that it had received the application (T p221) and, on the same day, Mr Llacsa Vilca was interviewed at the Embassy (T15 p216). At that interview, he told the interviewer that he came to Australia for a holiday, having been dismissed from his position with the magazine for which he worked before he left Peru (T15 pp216-220).
10. On 22 October 2003, an officer at the Australian Embassy in Santiago advised Mr Llacsa Vilca that she was considering refusing his visa application because his past and present general conduct and inviting him to comment (T23 p242). On 19 November 2003, Mr Llacsa Vilca’s migration agent made submissions on his behalf (T25 p246). On 24 December 2003, a delegate of the Respondent decided to refuse Mr Llacsa Vilca’s application on the ground that he did not pass the character test and having exercised her discretion under s 501(1) of the Migration Act 1958 (“the Act”) to refuse the visa. On 15 January 2004, Ms Llacsa lodged an application for a review of this decision by the Tribunal.
11. At the hearing, Ms Llacsa was represented by Christopher Levingston, Solicitor, of Christopher Levingston and Associates, and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor’s office. 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 evidence submitted by the Applicant at the hearing. Oral evidence was given in person by Ms Llacsa, Sandie Richards, Irene Perez and Irene Paltos and Mr Llacsa Vilca gave evidence by conference telephone from Peru.
Relevant Law and Policy
12. 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)(ii), as follows:
(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; …
13. 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”.
14. 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 the 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.
15. At the hearing, the Applicant conceded that Mr Llacsa Vilca is not of good character having regard to his past and present general conduct. The issue for the Tribunal, therefore, is whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Mr Llacsa Vilca.
Evidence
16. Mr Llacsa Vilca is a mechanic and truck driver. In January 2000, he read a newspaper article about travel to Australia for the Olympics and approached the author, Ricardo Apestegui, for assistance in obtaining a visa. Mr Apestegui advised Mr Llacsa Vilca that it was difficult for Peruvians to obtain a visa and the best way would be for Mr Llacsa Vilca to pose as a journalist travelling to Australia to cover the Olympic Games. Mr Llacsa Vilca signed the forms completed by Mr Apestegui and provided bank statements and other documents to be appended to his visa application. He also signed a forged Identity Card provided by Mr Apestegui which stated that he worked for Vision Global Magazine. Mr Apestegui submitted the visa application and supporting documentation and, in July 2000, Mr Llacsa Vilca was issued with a business visa. He said he was expecting to be issued with a tourist visa but had no understanding of visas at that time.
17. Mr Llacsa Vilca was busy with his work at that time and it was not until 30 January 2001 that his boss approved his holiday. He arrived in Sydney on 15 March 2001 and his “Aunty”, Irene Perez, a long time family friend but not blood relative, picked him up at the airport. He had spoken to her previously on the phone and she had invited him to stay with her.
18. During the course of his seeing and getting to know Sydney, Mr Llacsa Vilca visited some clubs and pubs and, in April 2001, he met Ms Llacsa at the Spanish Club. He invited her to dance, they got on well together and she gave him her telephone number. A few days later, Mr Llacsa Vilca telephoned and invited her out to dinner. Thus began their friendship.
19. On 14 June 2001, Mr Llacsa Vilca was granted a visitor visa valid until 14 September 2001, subject to a “no work” condition. He said he was happy because he had more time to get to know Ms Llacsa. He continued seeing her, she introduced him to her friends and they had a “wonderful time together”.
20. Ms Llacsa said that early on in their relationship she asked Mr Llacsa Vilca if he was a permanent resident in Australia. He laughed and said “Yes” but that he had a few things to deal with and that was his business. She had “baggage” too and so did not press him on this. They are both very private people. His English “wasn’t much” but they understood each other well enough. She had a few words of Spanish having mixed quite a bit in the Spanish community. Mr Llacsa Vilca is quiet and reads a lot so she assumed his account of being a journalist was true. He said he could not work as a journalist in Australia because of his lack of English.
21. Mr Llacsa Vilca said his falling in love with Ms Llacsa changed everything. In September 2001, he read an article in the Spanish Herald advertising a migration service with Spanish speakers. He went to see the principal of the service, a solicitor, Michael Kork (registered migration agent 9901846 of CLI Callan International). Mr Llacsa Vilca explained his situation to Mr Kork and asked what possibilities there were for him to stay longer in Australia. Mr Kork said there were good prospects if Mr Llacsa Vilca applied for a protection visa. Mr Kork did not explain much about the visa. He said a lot of people were applying for these visas to give them more time in Australia so that later they could apply for a permanent visa. Mr Kork did not ask why Mr Llacsa Vilca wanted to stay in Australia. Mr Llacsa Vilca said he did not tell Mr Kork about his relationship with Ms Llacsa. Although the relationship was serious, he wanted it to follow its natural course.
22. Mr Kork asked him to come for another interview so that he could make a statement. On this later occasion, Mr Llacsa Vilca spoke with a clerk who asked him a lot of questions about Peru, including about terrorism. The clerk then made up a story based on what Mr Llacsa Vilca had told him. He told the clerk he was a mechanic by trade and not a journalist as claimed in relation to the business visa. The clerk said Mr Llacsa Vilca should stick with the story that he was a journalist and concocted a statement to include this. Mr Llacsa Vilca acknowledged that the statement was untrue and that he knew that what he was doing was wrong. But the clerk said that in order to apply for the visa, he had to sign the statement. Mr Llacsa Vilca said he is now very sorry that he did this.
23. In November 2001, the clerk phoned Mr Llacsa Vilca and said his application had been refused, but there was an opportunity for an appeal. Mr Llacsa Vilca signed another document and, in December 2001, he was granted another visa. Mr Llacsa Vilca said he agreed to this because he wanted to extend his stay as long as possible. He said he was very much in love with Ms Llacsa and did not want to tell her of his situation. He was afraid he would loose her if she knew.
24. Mr Llacsa Vilca said from the time he arrived in Australia, his Aunty supported him with food and accommodation. In exchange, he helped her with repairs to her house – he renovated the kitchen and repaired the floor, and fixed her son’s car and did other odd jobs for her relatives. Ms Perez confirmed this. He did not get paid for this although he received some gifts. However, from October 2002, he started work for a construction company to save money for the future. He already had in mind to propose to Ms Llacsa.
25. Mr Llacsa Vilca said he brought about US$2,000 with him to Australia. Mostly, he only needed money to go out with Ms Llacsa and even then they shared expenses. However, he felt bashful about this because in South America the man always pays. He did not live with Ms Llacsa until they were married except for a few nights he spent at her house. Ms Llacsa said prior to 2003, she was not aware of what money Mr Llacsa Vilca had. They did not necessarily go out to eat – she is a good cook, and there was plenty they could do together without spending money. She has little money.
26. Mr Llacsa Vilca proposed to Ms Llacsa in December 2002. A few days later she agreed. They decided to get married a year later, in December 2003 and, in January 2003, began planning for this. Ms Llacsa was not yet divorced and they had to save money for the expenses. Mr Llacsa Vilca said he also did not want to press Ms Llacsa into marriage too quickly.
27. Mr Llacsa Vilca said that in early 2003 he felt depressed. He told Ms Llacsa it was because his mother in Peru was having an operation – which was true. However, what was really bothering him was his immigration situation. He was always worried because of the bridging visas. He realised he must tell Ms Llacsa about his status very soon. After his appeal to the Minister, Mr Kork advised him that he would only be able to stay on in Australia for six to 10 months at most. Mr Kork said that if the appeal was unsuccessful, the only other avenue was through marriage and asked whether he had a partner. Mr Llacsa Vilca said he did not. He did not want to marry in such circumstances. He wanted things to follow their natural course and did not want to rush into marriage. Mr Llacsa Vilca said he did not really understand the basis of the application for Ministerial intervention. He did what Mr Kork advised. Mr Llacsa Vilca said he knew his bridging visa did not permit him to work but Mr Kork did not explain the consequences of his doing so.
28. Ms Llacsa said when Mr Llacsa Vilca asked her to marry him, she assumed he would not have asked unless he was a resident. She only found out his true status after he was detained and phoned to say he was in Villawood. He said he had not told her before because he did not want to loose her. When he told her the truth, she said she suspected as much because it was strange that he would previously have been able to obtain permanent residence. However, she had been afraid to ask him questions about it.
29. Mr Llacsa Vilca said when he was detained, he felt depressed and lost. However, even though he told Ms Llacsa about his immigration status, he did not tell her that he was not a journalist. She did not ask about this. Even after their marriage, he did not tell her about this. Ms Llacsa and his Aunty set about trying to get him out of Villawood. First, Ms Llacsa contacted Mr Kork. She was not impressed by him and because all the applications he had handled for Mr Llacsa Vilca had been refused, they decided to find another solicitor. A fellow detainee at Villawood suggested Mr Boni Amin, so they contacted him.
30. Mr Llacsa Vilca said he and Ms Llacsa had an interview with Mr Amin to complete the spouse visa application. He listed his past employment as driver and mechanic and, for the last five years, journalist. At the interview at the Australian Embassy in Santiago, he also maintained that he had been employed as a journalist – because he had stated this in the application form. He only told Ms Llacsa the truth about his employment when the Embassy queried his employment with the magazine with Ms Llacsa and she asked him about this. Mr Llacsa Vilca acknowledged that he made a grave error in not previously telling the truth and asked for forgiveness.
31. Mr Llacsa Vilca was asked about having children. He said before he got to know Ms Llacsa he would have liked to have children – this was his intention as a younger man. However, his priority now is to spend the rest of his life with Ms Llacsa and not having children is not important. Ms Llacsa confirmed that they had discussed having children. When she told him she was not sure she could have more children, he said it did not matter.
32. Ms Llacsa said the divorce in respect of her previous marriage came through in May 2003 so that after Mr Llacsa Vilca was released from detention on a bridging visa they were able to get married. She said the relationship with him has changed her life. They “clicked” and she knows she is not being used. She will stay married to him no matter what happens. She was very upset when she learned how Mr Llacsa Vilca had been treated during the interview at the Embassy in Santiago and because she had not been asked about their relationship and what had happened. She obtained a flight to Chile as soon as she could and went to the Embassy in Santiago to try to see the officer handling the application. Ms Llacsa said she was appalled by the unfriendliness of the staff and the lack of courtesy shown to her. The receptionist told Ms Llacsa that the officer would not see her. Another officer told her another interview was unnecessary and not to worry, so Ms Llacsa felt she had no choice but to leave.
33. Ms Llacsa said she was shocked by Chile – by the lack of services, like hot water and by the dirtiness. She stayed with a friend’s mother. She did not go to Peru but has been told the conditions in Peru are worse than Chile. If Mr Llacsa Vilca’s visa application is refused, she does not know what she will do. She has nightmares about Peru and cannot conceive living there. She would not get the health care and support she needs.
34. Ms Llacsa suffers from an ongoing back condition following a work-related accident in 1991. She is also having neck problems as a result of a motor vehicle accident in May 2003, shortly before they were married. Ms Llacsa suffers from Meniere’s Disease and is deaf in her left ear and loosing the hearing in her right ear. She also has tinnitus which prevents her sleeping well so that she gets tired during the day and “nods off”.
35. Ms Llacsa was referred to a report by Dr Christopher Lennings, Clinical Psychologist, dated 31 May 2004 (A9). Dr Lennings states that in his opinion Ms Llacsa suffers from an anxiety disorder and experiences depressive symptoms from time to time. Ms Llacsa said she has suffered badly in the last year since she last saw her husband. She has palpitations, does not sleep and feels depressed. She misses him terribly and speaks to him every second day.
36. Ms Llacsa said she is very close to her daughter, Sandie Richards, and her three grandchildren, whom she sees every second day and speaks to on the phone every day. Ms Richards said she is very unhappy about the prospect of her mother going to Lima, and loosing the close contact with her and her children. She does not want her children to grow up without a grandmother. Ms Richards found Mr Llacsa Vilca to be a quiet, kind and caring man who was very good with her children, and with whom her mother was very happy.
37. A close friend of Ms Llacsa’s, Irene Paltos, gave evidence of Ms Llacsa’s loving relationship with Mr Llacsa Vilca. At first, Ms Paltos was a little surprised at the age difference, but observed the relationship develop normally. She said Mr Llacsa Vilca is a religious man who goes to church and keeps a Bible next to his bed. Ms Paltos trusts him and said it is not in his character to not tell the truth.
38. Ms Llacsa said her husband is working as a driver for Hypergas, delivering gas all over Peru. He earns a meagre salary of US$120 per month and currently sleeps on a bed in the office at work to avoid paying rent. He works long hours starting at 7.00am in the morning and returning at 10.30pm at night, six days a week. He would not be able to support her financially in Chile to enable her to meet her health care needs and she would find the loneliness difficult to cope with. Moreover, her knowledge of Spanish is almost nil.
Application of the Law and Findings
39. As noted above, the Applicant concedes that Mr Llacsa Vilca does not pass the character test having regard to his past and present general conduct (s 501(6((c)(ii)). The issue for the Tribunal to consider is therefore whether to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Mr Llacsa Vilca. In doing so, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that 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.
40. Paragraph 2.3 sets out the primary considerations:
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.
41. Before addressing these considerations, it is appropriate that the Tribunal set out its findings of fact. The Tribunal finds that Mr Llacsa Vilca made a number of false and misleading statements in connection with his entry to and stay in Australia. Mr Levingstone made the following concessions on behalf of the Applicant:
Schedule of conceded false and misleading statements
7 July 2000
The Visa Applicant lodged an application for a subclass 456 business short stay on the basis that he was employed by a company named Vision Global as a journalist and sought to travel to Australia to report on the Sydney Olympics. These claims were false and misleading.
The Visa Applicant through his agent provided fraudulent documents and misleading information to gain that visa including:
- a duly completed and signed visa application form;
- signed fraudulent identity cards of the magazine
company presented with the application;
- fraudulent work certificate.
7 September 2001
The Visa Applicant applied for a protection visa. His claims for protection were based on false and misleading statements. On 28 November 2001, the protection visa application was refused by a delegate of DIMIA.
28 December 2001
The Visa Applicant sought a review of the above protection visa refusal decision with the RRT.
The Visa Applicant sought to rely on false and misleading statements provided to the DIMIA in support of the primary protection visa application.
October 2002
The Visa Applicant commenced working as a Gyprocker on 3 - 4 days per week in breach of bridging visa E conditions.
31 March 2003
The Visa Applicant lodged a request for Ministerial intervention pursuant to s 417 of the Migration Act 1958. In support of the above request, the Visa Applicant provided a submission addressed to the Hon. Philip Ruddock MP containing false and misleading information.
22 April 2003
The Visa Applicant applied for and was granted a bridging visa E on the basis of the above Ministerial request. The Visa Applicant signed a document acknowledging conditions attached to the visa constituting his agreement to abide by those conditions.
29 May 2003
The Visa Applicant was located by DIMIA compliance officers working in breach of his current bridging visa E conditions. The Visa Applicant’s bridging visa was therefore cancelled and he was subsequently detained at Villawood.
16 July 2003
The Visa Applicant lodged an application for a subclass 309 spouse (provisional) visa with the Australian Embassy, Santiago, Chile.
In support of the above application, the Visa Applicant lodged with the Australian Embassy, Santiago, a duly completed Form 80 – Personal Particulars for character assessment.
Question 16 of this form contained false and misleading information [that he was employed by the magazine Vision from January 1995 to January 2001 as a journalist].
17 July 2003
The Visa Applicant was interviewed by Ms Carmen Gloria Fritis, DIMIA case officer, in regard to the above application for the subclass 309 spouse visa.
In response to certain questions put to the Visa Applicant during his interview the Visa Applicant provided false and misleading information. [He stated the magazine for which he was working “was involved in the Olympics, but when the moment came I wasn’t in the list of people whom the magazine had appointed to cover the Olympics”. He said three people from the magazine went but he did not have their names. He also said that in January 2001, before travelling to Australia, the “the magazine communicated verbally that I had been dismissed”. All this was untrue].
42. The Tribunal finds that the relationship between Mr Llacsa Vilca and Ms Llacsa is a genuine one. Ms Llacsa was not aware of Mr Llacsa Vilca’s immigration status until he was detained in Villawood, although Mr Llacsa Vilca’s evidence suggests that she may have been a little suspicious of his claim to be a permanent resident. However, each was protective of their own and the other’s privacy. This appears to have been the reason for Ms Llacsa not asking Mr Llacsa Vilca about his work as a journalist and his not revealing to her that he was not a journalist until questions were asked of Ms Llacsa by the immigration officer at the Australian Embassy in Santiago after they had contacted the magazine Mr Llacsa Vilca claimed to have worked for.
43. Ms Llacsa was aware of Mr Llacsa Vilca’s migraton status at the time of their marriage on 7 July 2003. Indeed, she brought the date forward from that planned in December 2003. On 13 July 2003, Mr Llacsa Vilca departed Australia to return to Peru. He is now living in Lima working as a truck driver. He and Ms Llacsa maintain contact by phone. She has not seen him since her trip to Chile in late 2003 when she tried to see the immigration officer handling her husband’s application at the Australian Embassy in Santiago.
44. The Tribunal finds that the separation is causing Ms Llacsa, in particular, significant hardship. This is further discussed below in relation to other relevant considerations.
45. Turning to the first of the primary considerations, the protection of the Australian community, the Tribunal notes paragraph 2.4 of Direction No 21 which states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community …
Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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).
Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
46. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
47. Mr Levingston, for the Applicant, acknowledged that Mr Llacsa Vilca’s conduct in making false and misleading statements is very serious. However, while working without permission is a criminal offence pursuant to s 235(3) of the Act, he submitted that this is not a serious crime. With regard to the risk that the conduct may be repeated, Mr Levingston submitted that the risk is non-existent or very low. The false and misleading statements were part of a course of conduct: Mr Llacsa Vilca “locked himself into a version of events” concerning his having worked as a journalist in Peru. He has now recognised his “appalling lack of judgement” and apologised for his conduct.
48. Mr Allatt, for the Respondent, submitted that Mr Llacsa Vilca’s conduct should be viewed with great seriousness. Given that such conduct was prolonged and intentional, there is a real risk of other misconduct.
49. The Tribunal concludes that Mr Llacsa Vilca’s misconduct is of a serious nature, albeit that it largely involved a repetition of his claim to be a journalist made when he first applied for a visa in July 2000. Nevertheless, he maintained this lie, even to his wife, and would not, apparently, have acknowledged it had the Australian Embassy in Santiago not made inquiries of the magazine he purported to have been employed by, and then on discovering that the magazine had no knowledge of Mr Llacsa Vilca, asked questions of Ms Llacsa.
50. Mr Allatt referred the Tribunal to previous decisions in which it emphasised the importance of the observance of the truth when dealing with officials in migration matters. For example, in Re Lachmaiya and Department of Immigration and EthnicAffairs (1994) 19 AAR 148 at 155, Deputy President McMahon commented:
The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications in dealing with the many reasons for coming to Australia.
51. While Mr Levingston sought to distinguish other cases in which deterrence was considered a relevant factor by reason of the multiple counts of misconduct in those cases, Mr Allatt contended that the grant of a visa in this case would effectively condone immigration malpractice. In the Tribunal’s view, Mr Llacsa Vilca made a significant number of false and misleading statements as Mr Levingston conceded. The maintenance of one of those misstatements up to and including the interview with the immigration officer at the Australian Embassy is of particular concern, and the Tribunal considers that in such circumstances the refusal of a visa may have a deterrent effect.
52. With regard to the second primary consideration, the expectations of the Australian community, Mr Levingston submitted that this is a matter of judgement which should take into account Ms Llacsa’s difficult situation. The Respondent submitted that the Australian community would not expect that a person who has engaged in serious breaches of the Act should be granted a visa. In the Tribunal’s view, it is the prolonged maintenance of Mr Llacsa Vilca’s lie concerning his purported employment as a journalist which would be of particular concern to the community in the context of his other immigration misconduct. Essentially, he maintained the lie until found out. Despite compassionate considerations relating to Ms Llacsa, the Tribunal’s judgement is that the Australian community would expect that Mr Llacsa Vilca would not be granted a visa in such circumstances.
53. The third primary consideration, the Best Interests of the Child, is not relevant to this matter.
54. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate 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 include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
55. As noted above, the Tribunal finds Mr Llacsa Vilca and Ms Llacsa to be in a genuine marital relationship. Ms Llacsa was not aware of his immigration status until he was detained but she was aware of this when they brought forward the date of their wedding and were married on 7 July 2003. Ms Llacsa is an Australian citizen. She has a daughter and three grandchildren who live nearby in Sydney to whom she is very close. Ms Llacsa’s son died of cancer at the age of 25 in 1987. Ms Llacsa suffers from a back condition and neck problems, Meniere’s Disease and a hearing impairment, an anxiety condition and, from time to time, depressive symptoms. The separation from her husband has caused her hardship. The Tribunal accepts that it would probably be difficult for her to live in Peru because of her need for ongoing medical treatment. The separation from her family and friends in Sydney would also cause her significant emotional hardship.
56. Excepting Ms Llacsa, all Mr Llacsa Vilca’s family are in Peru where he is employed as a mechanic and truck driver. The Tribunal accepts that the separation of Mr Llacsa Vilca from his wife has caused him hardship. With regard to evidence of rehabilitation or recent good conduct, the Tribunal’s concern, expressed above, is that he maintained the lie about his previous employment until very recently and only when challenged by the truth, admitted that he had lied.
57. Weighing up the primary and other considerations has proved very difficult in this case because of the strength of the compassionate considerations arising from Ms Llacsa’s situation. However, the Tribunal has concluded that these compassionate considerations are outweighed by the two relevant primary considerations concerning the protection and expectations of the Australian community discussed above. The Tribunal therefore affirms the decision under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 16 and 17 June 2004
Date of Decision 8 July 2004Solicitor for the Applicant Mr C Levingston,
Christopher Levingston & Associates
Solicitor for the Respondent Mr M Allatt, Australian Government Solicitor's Office
0
2
0