Machin and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 187
•7 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 187
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/18
GENERAL ADMINISTRATIVE DIVISION ) Re LUIS MACHIN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Block Date 7 March 2005
Place Sydney
Decision The decision under review is affirmed.
[Sgd] Deputy President J. Block
CATCHWORDS
IMMIGRATION – refusal of a Partner (Provisional) Class UF Subclass 309 Visa – analysis of background evidence of Applicant and Visa Applicant – Visa Applicants claims to be a refugee – expressed fears of returning to Bolivia –– Refugee Review Tribunal decided Visa Applicant not entitled to convention relief – Visa Applicant stayed in Australia and worked illegally - Analysis of the character test – Ministerial Direction 21 considered – decision under review affirmed.
Migration Act 1958 sections 234, 235 and 417
Ministerial Direction 21
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Scott Anthony Copeland v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 144
REASONS FOR DECISION
7 March 2005 Deputy President J. Block PART A – INTRODUCTION, PRELIMINARY
1. The decision under review is the refusal on 12 December 2002 by a delegate of the Respondent of an application made on 16 May 2001 by Theresa Guzman Aguilar (who is referred to as the “Visa Applicant”) for a Partner (Provisional) Class UF Subclass 309 Visa. That application was sponsored by Luis Machin, her husband, who is the Applicant.
2. The Applicant was represented by Mr M Churchill, a Solicitor, while the Respondent was represented by Mr G Peek of the Australian Government Solicitors Office.
3. The Tribunal had before it lengthy T-documents and also supplementary T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The supplementary T-documents are not numbered sequentially after the T-documents; accordingly references to the T-documents are preceded by “T” followed by a number which is a reference to a numbered page in the T-documents. The supplementary T-documents are referred to in similar fashion but by reference to “S” rather than “T”.
4. In addition to the T-documents and supplementary T-documents, the Tribunal accepted into evidence a considerable volume of Exhibits, some of which were of little relevance. Exhibit A1 is a very large volume of documents (124 in number) contained in a large loose leaf black folder and tendered by Mr Churchill as the Applicant’s documents. In respect of the Applicant’s documents Mr Churchill made it clear that his tender related to some but not all of the documents contained in the folder: the documents tendered are numbered 2-8 inclusive, 10 and 11, 13-21 inclusive, 23 and 24, 28, 30 and 31, 33, 36 and 37, 87 – 111 inclusive and 113-123 inclusive. The documents in the black folder to which the tender relates will be referred to where relevant by reference to “Exhibit A1” followed by a number which is the number of the document concerned. The Tribunal was informed that some of those documents are in fact included in the T-documents, and a reconciliation would have been helpful. Moreover, and in respect of the documents in the black folder to which Exhibit A1 relates, separation of those documents in the standard manner would also have been helpful.
Exhibit A2 is a letter by the Visa Applicant to this Tribunal dated 10 December 2003.
Exhibit A3 is a bundle of academic certificates and diplomas, in their English translation.
Exhibit A4 relates to the academic certificates and diplomas in Spanish, the English translations of which constitute Exhibit A3.
Exhibit A5 is a part of an issue of Los Tempos (a Bolivian newspaper) published on 10 January 1995.
Exhibit A6 is a letter by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) to the Visa Applicant dated 15 April 2003.
Exhibit A7 refers to certain medical documents referable to Jason Bautista (“Jason”) who is the Visa Applicant’s nephew.
5. This case was listed for hearing on no less than six days. Evidence was taken on 11 September 2003 (“first hearing day”), 12 September 2003 (“second hearing day”), 18 December 2003 (“third hearing day”) and 19 December 2003 (“fourth hearing day”). The witnesses who gave oral evidence were the Applicant, the Visa Applicant and Maria Bautista (“Maria”), who is the Visa Applicant’s sister. In respect of the Applicant a Spanish interpreter was available but was not, in the result, needed. The Visa Applicant gave evidence in Spanish with the aid of a Spanish interpreter, and by telephone link to Chile.
6. The fourth hearing day ended on the basis that the Respondent contemplated further enquiries in Bolivia as to certain matters, and in particular the newspaper article referred to in Exhibit A5 and which had been produced in photocopy form. In the result, the Respondent did not consider it necessary to tender evidence in this particular regard, and at a directions hearing, held in February 2004, a timetable was arranged in respect of the delivery by the parties of written submissions. That timetable was, in the Tribunal’s view, generous as to the time periods allowed, more particularly as Mr Churchill intended to be away overseas on personal business. It was contemplated that in respect of the written submissions, there would be oral submissions by way of amplification. On the 27 of July 2004, oral submissions commenced, (no written submissions having been received): however it became clear that Mr Churchill was not in any position to deal adequately with the evidence which had been furnished to the Tribunal, more particularly because he had not obtained and been able to consider the transcript. It was in these circumstances that the matter was postponed to enable him to do so. It may be noted in this context that the quantity of evidence before the Tribunal is very considerable indeed: the T-documents, supplementary T-documents, Exhibits (and in particular Exhibit A1) when coupled with the transcript in respect of the four hearing days, are such that the Tribunal felt that the submissions of the parties dealing specifically with the evidence before the Tribunal would be of assistance to it. On the final hearing day, 8 October 2004, the parties asked for permission to furnish their submissions in writing: a timetable was framed for that purpose. Under that timetable, the Applicant was to file written submissions by 7 November 2004, while the Respondent was to file his written submissions in reply by 4 January 2005. The Applicant was given a right of reply and which he was entitled to exercise if he considered it desirable to do so by not later than 28 January 2005. Written submissions were duly received from each of the Applicant and the Respondent, although not strictly within the time periods allotted, but the Applicant did not elect to file submissions in reply. (It is noted that the Applicant was not under any obligation to do so). In February 2005, the Tribunal wrote to Mr Churchill pointing out that written submissions in reply had not been received, and allowing the Applicant a further period, until 21 February 2005, within which to do so and noting that if the Applicant did not choose to furnish submissions in reply, the Tribunal would proceed to this decision on the evidence and submissions before it. Nothing further was heard from Mr Churchill in this regard,
7. The Transcript (TS) is relevant in particular of those days on which oral evidence was taken. It is numbered sequentially in respect of the first two hearing days but commences with page 1 in respect of each of the other hearing days: accordingly and as a matter of convenience TS references will be included by a reference to a commencing number which is 1,2, 3 or 4 and which is a reference to the relevant hearing day, and even though for the first and second hearing days numbering was sequential.
8. The quantity of evidence before the Tribunal is so large that to deal with all of it in any detail would have the effect that this decision is quite extraordinarily long and indeed unnecessarily so. The Tribunal intends, in dealing with the evidence to include some quotations or extracts from the Transcript: in other cases it will refer to the Transcript. The Tribunal intends also to include some extracts from evidence in written form.
9. The Respondents Statement of Facts and Contentions dated 26 August 2003 contains under the head of “Facts” the usual helpful chronology of relevant events. Its content, but confined to the chronology, is included in these reasons as follows:
“Date Event
02/07/1996 Review applicant born in Cuba (T8, f54)
03/10/1967 Applicant born in Bolivia (T8, f51)
20/07/1994 Applicant enters first marriage (T8, f55)
14/06/1995 Applicant’s first marriage ends (T8, f55)
29/08/1995 Applicant arrives in Australia on tourist visa (T8, 50)
20/10/1995 Applicant lodges Protection Visa application (T4, f28)
Permission to work commences (T8, f58)
29/01/1996 PV application refused by a delegate (T4, f28)
28/02/1996 Applicant applied for an onshore Family (Residence) visa –
Special Need Relative, subclass 806 visa (s48 barred) (T2, f9)
28/10/1996 Review Applicant arrives in Australia (T8, f67)
24/12/1997 RRT affirms decision to refuse PV (T4, 27)
16/01/1998 Special Need Relative Visa refused – applicant advised 35
Days to depart (T2, f9)
23/01/1998 Applicant applies for Ministerial intervention (T2, f9)
26/10/1998 Ministerial intervention refused (T2, f9)
05/11/1998 Permission to work ceases (T8, f58)
--/01/1999 Applicant granted citizenship (T8, f94)
15/06/1999 Applicant and Review applicant commence relationship
(T8, f56)
26/09/1999 Applicant and Review applicant marry (t8, f51, 80)
20/04/2001 Applicant departs Australia (T22, f284)
27/04/2001 Applicant departs Australia (T22, f284)
16/05/2001 Applicant lodges application for 309 Provisional Spouse
Visa with Embassy in Santiago (T2, f9) (Note that sponsorship
For Partner formed date stamped 12 April 2001 – T8, f65, may
Be that earlier date is correct date for application lodgement).
Also on date of lodgement advised appointment of Monica
Celedon as Migration Agent. Celedon later deregistered. In
July 2002 applicant appointed Robert Brock migration agent.
12/12/2002 Application for 309 Provisional Spouse Visa refused (T2,f5)”.
10. It is convenient in this Part A to include the content or part of the content of a number of documents which proved to be of particular relevance.
11. The Visa Application applied for a protection visa in October 1995. When it was refused, she sought its review by the Refugee Review Tribunal (“RRT”). The RRT affirmed the delegate’s refusal; the RRT’s findings and reasons (T page 30 and T Page 31) read as follows:
“FINDINGS AND REASONS
The Tribunal accepts that in about August 1994, the Applicant fired an employee of her father’s and that as a result she was threatened by the former employee and by that person’s husband. The Tribunal also accepts that the Applicant’s brother’s home and her parent’s home suffered explosions in January 1995 and that the Applicant believes she was the target on both occasions. The Tribunal accepts as plausible that anonymous and threatening calls about the Applicant have been ongoing, however, the Applicant was not harmed in the explosions and she has not been harmed nor did any further incidents occur in the following seven months before she came to Australia, even though she lived and worked in her home area and the threatening but anonymous calls continued. The Tribunal noted the considerable resources devoted to the Applicant’s case by various authorities in Bolivia including the ongoing surveillance of the Applicant’s parent’s home even though they were never threatened and the Applicant had left Bolivia.
The Tribunal observed that it did not make sense for terrorists or gangs to continue to threaten someone for nearly three years, especially when according to the Applicant’s evidence, the caller knows that she left the country. Furthermore, it is highly unusual for terrorists to remain anonymous or for gangs to demand nothing and for both to continue to make empty and vague threats. The Applicant made no comment. The Applicant’s witness agreed with the Tribunal’s observations; he though that maybe the police were not telling him everything even though they had first suggested terrorists.
The Tribunal does not accept that the Applicant has a well-founded fear of persecution by criminal gangs or terrorists. This is because those threatening the Applicant are unknown, the reason the Applicant has been targeted is not known and because in any case, the Tribunal does not accept as plausible that terrorists for criminal gangs would act as described by the Applicant and her witness over such a long period of time and for no apparent reason.
The Tribunal accepts as plausible that the person(s) responsible for the explosions and.or the threats, maybe, as originally claimed by the Applicant, the former employee and her husband. However, even if this is the case, it was the Applicant’s evidence that the only possible motive was revenge on the Applicant because she fired the employee. As such this is a personal matter and outside the scope of the Convention.
The Tribunal accepts that the Applicant may still fear harm even if she returned to Bolivia now, nearly three years after the explosions, however, the Applicant has no idea, and there is no evidence to suggest, who it is that she fears or why the person or the group is motivated to threaten or harm her. In this situation there is no evidence to suggest that the Applicant fears harm for reason of her race, nationality, religion, membership of a particular social group or political opinion. The Tribunal is not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason”.
It is relevant to note that one of the Visa Applicant’s brothers gave evidence before the RRT: he said that the authorities suspected terrorists, more particularly because of Bolivia’s border with Peru and the presence of “Shining Path” in Peru. There was apparently no reference to this terrorist organisation thereafter.
12. A letter or certificate by the police (“the police certificate”) in Bolivia and which was submitted in connection with the Visa Applicant’s claim to be a refugee, and which is Exhibit A1: 121 was issued on 13 October 1995 at Cochabamba and signed by Lieut. Octavio Gutierrez Pradinea: it reads as follows:
“(Translation from Spanish language)
I, THE UNDERSIGNED INVESTIGATING OFFICE OF THE POLICE INVESTIGATION SPECIAL CENTRE, AT THE REQUEST OF MR. FAUSTINO GUZMAN PENA THROUGH MEMO PRESENTED TO THESE OFFICES, HEREBY CERTIFY that:
On 12 January of the current year, Mr FAUSTINO GUZMAN PENA presented a formal report against the Author or Authors of a dynamite attempt in his property situation at No 1491 Adela Zamudio Street, which occurred about 9.15pm, case labelled No 0092. Once the report was received an investigation assigned to me was carried out. At the scene of the incident it was established that the explosive caused considerable damage in the garden fence and the breakage of 15 glass panes in the property. At the time of the explosion Miss TERESA GUZMAN AGUILAR accompanied by the housemaid PATRICIA HERRERA were inside the house.
It is noted that the said young lady (TERESA GUZMAN AGUILAR) has been the recipient of several anonymous phone calls and continuous threats, for which reason it was necessary to install surveillance at the house to provide protection and safety for her.
Also, on 7 January 12.15pm at No 0435 Alcides Arguedas Street, a house owned by Mr MARIO GUZMAN AGUILAR took place a first attempt which caused substantial damage, the case being assigned to me under No 0066.
From the two investigations carried out it is assumed that the said attempts would be directed against Miss TERESA GUZMAN AGUILAR, as she was the one who had received the anonymous calls and threats, for which reason it was necessary to instruct the abovenamed to leave the country for a period of time until this type of situations is discontinued.
This is all I can certify for suitable purposes.
Cochabamba, 13 October 1995
(Illegible signature)
Lieut. Octavio Gutierrez Pradinea
C.E.I.P INVESTIGATING OFFICER
Stamp with the words: NATIONAL POLICE – DEPARTMENTAL ADMINISTRATION INTELLIGENCE – Cochabamba – Bolivia.”
13. The newspaper report (Exhibit A5) reads in its English translation as follows:
“Police Investigate Bombing Assault at Private Residence
Up until the closing of the present edition, the mystery still remained as to the possible causes which motivated an attempt against the Guzman family home, although investigations will intensify to find the culprit or culprits.
Unknown persons threw dynamite at a private residence yesterday morning in Arguedas and Felix el Granado streets, causing considerable damage.
Mario Guzman is the owner of the residence where said explosive detonated at around 4.00 in the morning yesterday – Monday - , bringing specialised police troops into action.
According to a specialist report, the dynamite was thrown from a moving vehicle to the interior of the home, hitting one of the walls and falling near the outside fence.
It cause damage to doors and windows and made a hole in the floor.
POLICE WARNING
Col. Vitalino Perez Crespo, Commandant of the Police Department, warned that the use of violence to alter the peace and tranquillity of the citizens will not be tolerated.
He said specialised groups have been mobilised to investigate the case and find the culprits so they can face the judicial system.
Perez Crespo said that every effort will be made to find the bombers, [especially] because this is one of the first incidents in which an explosive of such destructive force is used.
He said that, to do this, a co-ordinated effort has been established among the operative units under his command so as to clear up the attempt as early as possible, especially since the investigators are working with some evidence.”
14. The Visa Applicant’s letter to the Respondent dated 21 January 1998, and in which she sought the exercise of his discretion under section 417 of the Migration Act 1958 (“the Act”), and in which she sought assistance on humanitarian grounds, reads as follows (Exhibit A1: page 118):
“Dear Mr Philip Ruddock,
My name is Teresa Guzman and I am writing to you in relation to my current status in Australia. I have applied to the Department of Immigration and the Refugee Review Tribunal to be recognized as a refugee in this country. Unfortunately both departments have refused my applications for a Protection Visa. I am therefore addressing this letter to you personally in the hope that you will be kind enough to grant me stat in Australia on Humanitarian grounds. Please find enclosed a copy of the decision made by the Refugee Review Tribunal.
The member of the RRT accepted that I have a fear of persecution but refused my application for refugee status on the grounds that I do not meet the definition of a refugee as per the United Nations Convention, she accepted that I was truthful. The fear of persecution that I feel is based on the anonymous threat calls I have received and on the fact that attempts have been made on my life. I have included two police reports accompanied by their translations into English. The first describes the problems I have experienced in Bolivia and the second is indicative of the present situation. You will find that I was recommended to leave the country in 1995 and that I am still in danger (as stated in the second report) if I were to return.
I would also like to add that I have been working here in Australia; as evidence of this I also include past tax returns. I am hoping this will prove to you that I did not come here to be a burden on your government. I am working hard to pull my own weight in hopes that I will be able to work in my profession as an architect in the future. My hopes are also that I will be able to remain here with my brothers and sisters and become a citizen like them.
As you can see from the evidence I send in this letter, my fears of persecution on return to Bolivia are real and I am hoping you will exercise your power to apply the law with Humanitarian guidance. I am hoping you will recognise that persecution is much wider than the limited description which are the five Convention reasons.
Please feel free to contact me if you have any questions.
Yours sincerely,
Teresa Guzman
DIMIA File Number: N95/003226.”
It will be noted that the Visa Applicant in that letter referred to her siblings and in particular to brothers who were Australian citizens. The Visa Applicant has three brothers one only of whom (apparently) became an Australian citizen but (and possibly before the date of the relevant letter) returned to Bolivia; see clause 15 below.
PART B – OVERVIEW
15. The Visa Applicant is one of eight siblings, three male and five female. Of her sisters Maria and Maria Melvy Moritano (“Melvy”) are residents in and citizens of Australia. One of her brothers (so the Tribunal was informed) became a citizen of Australia but returned to Bolivia. Her parents live in Bolivia as do some of her siblings; others again live in other parts of South America. In her spouse visa application, the Visa Applicant omitted one of her brothers. She gave details of her brothers and sisters in answer to question 9 at T page 53 as follows:
“All your brothers and sisters (including full, half, step and adopted brothers and sisters)
MARIA YOLANDA VASQUEZ F 8/2/49 MARRIED BOLIVIA
JOSE MARIA GUZMAN M 2/1/51 MARRIED BOLIVIA
ROSEMARY GUZMAN F 2/7/57 SINGLE BOLIVIA
MARIA MELVY MORITANO F 22/7/60 MARRIED AUST.
JOSE EDWIN GUZMAN M 19/6/62 MARRIED BOLIVIA
MARIA BATISTA F 29/7/64 MARRIED AUST.”
16. The Applicant is an architect. She studied architecture in Argentina from 1987 to 1994 and after obtaining her degree returned to Bolivia at some time in 1994. Although there was a delay before her qualifications were recognised in Bolivia, this appears to have been a formality only because from the time of her return to Bolivia she, (according to her evidence) became very busy indeed. She obtained a position in a construction company; she also became a partner in an architectural practice. And in addition (apparently) she found time to assist in the family business owned by her parents and which is conducted through two branches, one in Cochabamba and one in Riveralta, both in Bolivia. These two places are some way (three hours by air) apart. The business in question engages inter alia in the import of motorcycle parts from Korea and Japan.
17. The family is clearly one of both means and influence. It was able to finance the Visa Applicant in respect of her architectural studies in Argentina over a number of years. When she (eventually) left Australia, in April 2001, she went to Chile and not Bolivia and since arriving in Chile has been provided with some financial help by her family. After the bombing in January 1995 and which involved the homes of the Visa Applicant’s brother and father, and within a few days of each other, police surveillance was made available. However the evidence was that surveillance was paid for by the Visa Applicant’s family, although as to when surveillance began and when it ended, and what part was paid for by the family, was never clear. There were references throughout the evidence to assistance from a brother in law who is a high ranking officer (commander) in one of the services.
18. The Visa Applicant first came to Australia in 1989 as a tourist in order to visit her two sisters Maria and Melvy, both of whom live in Sydney. In 1994 she made application for permanent residence in Australia on the basis of her skills. That application was refused because her skills were insufficient.
19. In 1995 Maria was pregnant and her baby was expected in August 1995. The Visa Applicant applied for a tourist visa to come to Australia and to be with Maria when the baby was born. In applying for a tourist visa, the Visa Applicant made no mention of the bombings or of any fears for her own safety. It may be noted also that there was no suggestion that Maria’s pregnancy was in any way abnormal although the evidence does refer in this context to hypertension.
20. In fact the Visa Applicant arrived in Australia on 29 August 1995, some three days after Maria’s son Jason was born.
21. On 20 October 1995, the Visa Applicant made application for a protection visa on the basis that she had fears as to her safety in Bolivia. In support of that application, the Visa Applicant furnished the police certificate. It may be noted that although the bombing occurred in January 1995, she left for Australia in late August 1995, having lived with her parents in the same home in Bolivia during the intervening period.
22. After her protection visa application was refused, the Visa Applicant sought its review by the Refugee Review Tribunal (“RRT”). Prior to the issue of the RRT decision, the Visa Applicant made an application dated 28 February 1996 for a Special Needs Relative Visa (referred to as the “Special Visa”) and in order to assist her sister Melvy. The timing of the Special Visa application suggests that the Visa Applicant might not have had much confidence in the outcome of the RRT review. In the alternative, she made the Special Visa application by way of additional precaution, in respect of her desire to stay permanently in Australia. In fact the RRT affirmed the delegate’s decision; moreover letters written to the Respondent pursuant to section 417 of the Act did not bring about any outcome favourable to the Visa Applicant.
23. Melvy withdrew her support for the Visa Applicant’s Special Visa application. Melvy did not give evidence before the Tribunal and Melvy’s reasons for that drastic action must be inferred from the evidence before the Tribunal. There are two possible reasons; that application either endangered or had the potential to endanger Melvy’s social security benefits and which appear to have been substantial. The other reason more particularly referred to in the Visa Applicant’s evidence is that Melvy who was estranged or divorced from her husband, feared that the Visa Applicant’s presence would adversely affect her prospects of a reconciliation with him. Accordingly the Visa Applicant who have lived with Melvy for approximately a year was obliged to leave Melvy’s home. Of the two reasons provided, the social security aspect might be that which is more likely to be correct.
24. Throughout her years in Australia, the Visa Applicant worked as a cleaner or a nanny and sometimes both. There were times towards the beginning of her stay when it was legal to do so, but it became illegal as from a short period after the date of the RRT decision. By early 1998 all of her options had been exhausted and she was required to make arrangements to leave Australia. She eventually left Australia and went to Chile on 27 April 2001, nearly two and a half years later.
25. The evidence of the Applicant was relatively uncontroversial and can be dealt with in brief. The evidence of Maria was largely irrelevant and can also be dealt with, at least in comparative terms, briefly. The evidence of the Visa Applicant was very lengthy indeed, and must of necessity be dealt with in some detail; it was in general terms often inconsistent, often convoluted and sometimes (and demonstrably) untruthful. I intend, as I have indicated, to deal with some of the more convoluted aspects, and especially when any such aspects are peripheral to the main issues, in brief terms by reference to the Transcript and including the relevant TS references; in other cases I intend to include extracts from the Transcript.
PART C – THE VISA APPLICANT’S CLAIMS TO BE A REFUGEE
26. A large quantity of time was devoted to the Visa Applicant’s claims to be a refugee and her repeatedly expressed fears as to Bolivia. According to her evidence those fears are such that she cannot even now return to Bolivia. It is desirable that this important aspect be seen in perspective and it is for this reason that it is dealt with at this early stage in a separate part and being this Part C.
27. The explosions occurred in January 1995. The Visa Applicant thought that the perpetrator was the disgruntled husband of a female employee in her parent’s business and who worked in the Cochabamba branch although in other evidence she referred to that employee as being employed in the Riveralta branch. As I have indicated these two places are some considerable distance apart. As to how the Visa Applicant came to be working in the business at that time given that she had heavy professional and other work commitments of her own is difficult to understand. Even more difficult to accept is the fact that if she was never more than an occasional helper in the business (and it is difficult to comprehend how she found the time to work there at all) it is unlikely that she would have had the power to discharge an employee summarily. The ex-husband of that employee was arrested but shortly thereafter released for lack of evidence.
28. The Visa Applicant, according to her evidence, was so afraid that she could never return to Bolivia thereafter. That evidence must be regarded in the light of the fact that she stayed in Bolivia with her parents in the same house (that is the house which was bombed) until she went to Australia in late August 1995 in order to assist Maria who was pregnant. She obtained a visa to visit Australia on these grounds; she made no mention whatever to the Australian embassy to whom she applied for a visa, of any fears as to her safety. Her express purpose was to assist Maria in her pregnancy, and as I have said there was no suggestion that Maria’s pregnancy was abnormal.
29. Having arrived after the baby was born, the Visa Applicant discovered according to her evidence (for the first time) in October 1995 that it was possible for her to apply for a protection visa. It is relevant to note that she ascertained for the first time that she could apply, and did in fact apply after the date of the police certificate. The nature of the police certificate and all of the evidence surrounding its procurement, is such that the Respondent was justifiably suspicious as to its provenance, more particularly given that the police provided surveillance which was, as I have said, paid for either in whole or in part by the Visa Applicant’s parents. The newspaper was produced in the form of a photo-stat which included alongside it an article on an entirely different topic but in a different type face. This too caused the Respondent to be suspicious. At the end of the day it is unnecessary to come to a conclusion as to the validity of either. It seems likely that the newspaper report was genuine; there is more doubt as to the police certificate. It does not appear to have been issued on a letterhead, although it does bear a rubber stamp.
30. It is important to note that the two sisters in Australia knew nothing whatever of the bombing incident. The evidence was that they were not told about unhappy events.
31. The Visa Applicant’s application for a refugee visa failed and she sought its review by the RRT. At about the same time she applied for a Special Visa in respect of Melvy. Melvy withdrew her support and she was ordered out of Melvy’s home. As I have noted Melvy’s motives were at least in part and in all probability her fear that her social security benefits would be endangered.
32. The RRT affirmed the decision while accepted some of the Visa Applicant’s claims at face value but holding that she was not entitled to convention relief. The RRT may not have been furnished with as much background material as was produced by the Tribunal.
33. The applications under section 417 of the Act failed. The Visa Applicant continued to work illegally in menial occupations. By early 1998 she had exhausted all of her options but she did not leave Australia. When it was put to her that she could as a qualified architect have obtained work befitting her qualifications in Argentina or Chile if she did not want to go back to Bolivia, her answer (in melodramatic terms) was that Australia was the place where her family was. That statement was of course untrue; she has parents and five siblings in Bolivia and nearby countries. She has only two siblings in Australia; in respect of Melvy her relationship might not have been close given the role Melvy played in relation to the Special Visa application.
34. The Visa Applicant stayed in Australia and continued working illegally, as I have said, after all of her options effectively ended in early 1998. It was some time (more than a year) before she met the Applicant and they were married in September 1999. The Visa Applicant continued to work (illegally) in a menial occupation (that of a nanny) even after marriage until she eventually departed for Chile in April 2001. When the Visa Applicant last gave evidence before the Tribunal she said that she was still afraid of going back to Bolivia. In fact she went to Chile. It may be noted that most of her adult years have been spent outside Bolivia. In fact, and during that period she appears to have been in Bolivia, after returning in 1994 from her studies in Argentina, for something of over a year in 1994 and 1995 until she came to Australia in August 1995. Her evidence as to heavy professional commitments coupled with the fact that she was apparently able to obtain leave of four months after so short a working period and effectively abandon all of them, leads me to wonder whether that evidence may not have been exaggerated. If she was coming to Australia to be with Maria at the time of the birth, one might reasonably expect that she would have arrived a week or so at the least before the anticipated birth date. Her evidence was that there was a delay in her arrival in Australia because of difficulty as regards flights. There are in fact so many flights between Australia and South America that this reason is hard to credit.
35. When one takes into account her failed application to emigrate to Australia in 1994 in consequence of her having insufficient skills, it is not possible to come to any conclusion other than that it was her intention from the outset to settle in Australia and that she was ready, willing and prepared to break Australian migration law repeatedly and as often as necessary in order to achieve that object. Some of her evidence was so demonstrably false that even the Applicant stated, openly, that he did not believe her.
36. It will be clear then that in my view the evidence points in overwhelming fashion to the fact that the Visa Applicant was never a refugee and knew she was not a refugee and so that all of her claims in this regard were false.
PART D – THE APPLICANT
37. The Applicant’s witness statement is document Number 2 in Exhibit A1.
38. The Applicant is an electronics engineer employed at the time when he gave evidence by Amdex Electronics. He came to Australia from Cuba as an independent migrant, met the Visa Applicant in February 1999 and began living with her in July 1999;, they were married in September 1999. There is no issue as to the genuineness of the marriage.
39. The Applicant had been married previously and divorced. He was nearly 40 in 2003 and thought that he should get married (1TS10). When he proposed to the Visa Applicant, so he said, some initial reluctance on her part because she was in Australia illegally. His attitude was that they should marry and sort out their problems later. She told him that she had been “illegal for a little while”. He went on to say (1 TS 12) “I didn’t know the details because she never wanted to talk about her life before but once we start on the process I have to start looking at the paper where I realise all the problems are – everything that happen before”.
40. The Applicant and the Visa Applicant consulted a migration agent named Concetta Zaledon, afterwards struck off because she was arranging marriages which were not genuine. By the time of his marriage to the Visa Applicant on 26 September 1999, he knew of the earlier applications (1 TS 10). Zaledon was according to him, consulted before their marriage. The Visa Applicant had said at her interview in Santiago on 30 September 2002 (T21) that they consulted Zaledon one month after marriage. The Applicant when this was put to him said “I believe there should be some mistake in the translation”. It was then put to him that she said at the same interview that she could not leave because her husband had said “No I could not leave as we had just married”. He said that any such statement was not true.
41. The Applicant was referred to a statement by the Visa Applicant at the interview that “my husband then said he would accompany me overseas if I could not stay in Australia. Eventually I agreed to marry him (1 TS 25)”. The Applicant said that he did not remember saying any such thing and that he had no intention of leaving Australia.
42. The Applicant is, I have no doubt, a competent electronics engineer but he managed to get into something of a muddle as regards real property and more particularly the necessary finance for it. He said that after marriage the Visa Applicant had to work, albeit illegally, because they had a large mortgage on a property in Glenwood. He and his sister owned a unit in Liverpool which was mortgaged. He originally lived in the unit with his sister, and his sister still lives in it, and is paying one half of the mortgage cost. He and the Visa Applicant purchased the property in Glenwood and it is registered in their joint names. He said that they did not receive any advice at the time of purchase that non-residents of Australia are not in general terms permitted to purchase residential real property. The acquisition by the Visa Applicant of a half interest in the Glenwood property was illegal under the Foreign Acquisitions and Takeovers Act; however I do not intend to treat that breach as very serious in the context of this case.
43. The Applicant proceeded with a building of a house on the Glenwood property, notwithstanding the fact that the Visa Applicant’s status was so uncertain because, so he said, GST was to be introduced in July 2000 and after which to build would be more expensive. The Applicant’s evidence was that the Visa Applicant did not want to leave until the house was complete even though she played no role in its design.
44. The Applicant said that the Visa Applicant was living in Chile on support provided by her parents and that she was not working. (Her evidence differed; she said that she does have employment in Chile). He said that he was not sending her any money because of his mortgage commitments. He said that she had tried to obtain a job in Europe but without success.
45. At the time when he gave evidence, the Applicant had not seen the Visa Applicant since she left Australia in April 2001. Financial considerations coupled with an injury to his back prevented a visit. He was not living in the Glenwood house again for financial reasons because it had been necessary to rent it to a tenant. The Applicant made it clear that if the decision were affirmed, he would not leave Australia. He said (1 TS 38) “I choose Australia for living. I can be living in the United States if I want”.
46. In re-examination the Applicant made it clear that he would not be re-united with the Visa Applicant in Bolivia, Chile or Argentina. As he put it “it is not for political reasons; it’s economic reasons”.
47. Although the Applicant sought permission to leave the hearing at the end of his evidence (and permission was granted) he stayed in order to hear the Visa Applicant’s evidence and indeed on occasion interrupted.
PART E – THE EVIDENCE OF THE VISA APPLICANT; THE EVIDENCE IN CHIEF
48. The Visa Applicant gave her evidence in Spanish although apparently she is reasonably fluent in English which is to be expected having regard to her education and the period of time spent by her in Australia. Her witness statement is Document Number 1 in Exhibit A1.
49. In January 1995 there were explosions at the homes of her father and her elder brother which are two blocks apart. As set out in Part D, she, the Visa Applicant, thought that the perpetrator was the husband of an employee of her parents who had been discharged by her.
50. The Visa Applicant said that she came to Australia for one reason only and that was to be with her sister Maria when Maria gave birth. She was asked where she stayed when she first arrived in Sydney on 29 August 1995; she answered (at 1 TS 46) “with my sister Maria because of the birth of her first baby with a reason for me to go and visit her. Because there was a chance that Maria had to stay in hospital for some time because she was having some problems with her pregnancy so she needed some help”.
51. She said that after coming to Australia she heard about the possibility of an application for refugee status and consulted a solicitor in October. She said that she made no mention of the Bolivian problems at the time of her visa application because so she said “After being with Maria for a while, in a meeting with her at her place with my other sister at Maria's place, I told them that - I told them what I went through back there in Bolivia and afterwards my sister, Melvie and myself went to see a solicitor to help us, or to give us some advice of what we could do in this case. When we went to see him and explained everything to him and everything that I went through back in Bolivia and he suggested that due to this situation that I went through in Bolivia that I could make an application as a refugee. And I didn't know anything about the type of application until that time when the solicitor told me about it”.
52. At 1 TS 48 to 1 TS 50, the Visa Applicant spoke of how she came to make a Special Visa application in relation to Melvy. And at 1 TS 49 she said: I live at Melvy’s house for a almost a year and because of incident between Melvy and myself because of – related to her emotional state, she asked me to leave the house.”
At 1 TS 50 she said that there were difficulties with Melvy as regards her husband; by way of example she said at the top of 1 TS 50 “She told me on three occasions that because I was, I help, like, her ex-husband wouldn’t go and visit her”.
53. At 1 TS 53 and following, the Visa Applicant spoke of Melvy’s withdrawal of support and of her denials that she had done so. See 1 TS 53 as follows: “I ask Melvie why you wouldn't tell me about the letter and she - sorry, and she kept saying that she has never send that letter so she refused that she did. But when I insisted and I said that I have seen that letter, the one that she - that was handwritten by her and she was furious and say that that was supposed to be confidential and that she was going to make a complaint to Immigration. So that made me believe that she did but – send the letter, but even now she is still saying that she did not send that letter”.
54. The Visa Applicant said that she met the Applicant in January 1999, that they started going out and that in June it became “more final”. She said that the Applicant asked her to marry him on a number of occasions before she consented.
55. The Visa Applicant agreed at 1 TS 55 that her Special Visa application was made at the same time as she had a matter running before the RRT. She said “yes it was more or less in the same month”.
56. The Visa Applicant said that she went to Chile and not Bolivia “because of situation that I went through hasn’t been clarified” (1 TS 55). (This was a reference to the bombing incidents which had occurred so many years previously.) She said, also at 1 TS 55, that her parents were still living in Bolivia.
PART F – THE CROSS EXAMINATION OF THE VISA APPLICANT
57. Mr Peek put it to the Visa Applicant that between 1989 and 1995 when she left Bolivia she had spent only two years there. (The Tribunal notes that the relevant period may have been less). She replied that she was studying in Argentina and only went back to Bolivia during holidays. In fact, the period of commencement of her studies was 1987 and not 1989.
58. I do not think it necessary to go into detail as to the lengthy evidence in respect of additional courses taken by the Visa Applicant after her return to Bolivia, her application to have her Argentinian qualification re-validated in Bolivia and her various occupations. Suffice it to say that by the time the re-validation came through she was no longer in Bolivia. She said at 1 TS 63 that she started work for a building company in May 1994 and then in 1995 worked for another company and also opened an office in her architectural partnership. Exhibit A1, Document 7, indicates that she took a course at a University from 12 July 1995 to 12 August 1995. At 1 TS 64 the Visa Applicant said that she started her partnership in July 1995. Further examination as to the date of commencement of the partnership resulted in the following exchanges in 1 TS 65 to 1 TS 66:
“THE INTERPRETER: No, I can't remember well, but I had already been
helping my business partner doing some work.
THE D.PRESIDENT: No, but she said that she met him at the course?
THE INTERPRETER: Yes, I met him at the - I met him in the course but
I'm not - I don't remember exactly when we started the partnership.
MR PEEK: But you agreed, didn't you, that it was in July, some time in July
1995?
THE INTERPRETER: I think it was at the beginning of - because, yes, I
think it was at the beginning.
THE D.PRESIDENT: The beginning of what?
THE INTERPRETER: Beginning of '95.
MR PEEK: But you agree, do you, that you, just moments ago, you told us
that it was July 1995?
THE INTERPRETER: No, because now I remember that I helped my
colleague to write a job for the council back there in my city and because of
the two incidents that I suffer - that happen to me in January, there were
people following me to work.
THE D.PRESIDENT: Sorry, I am totally lost in all of this. She said - the
question that Mr Peek asked you was this: it is perfectly right that she did say
that she started the partnership in July 1995. Then she said the beginning of
1995 and from then on I have got lost, and now we are talking about some -
now, we are on the two incidents and I don't see what one thing has got to do
with the other?
THE INTERPRETER: I'm sorry but I'm now - I'm just now remembering
that when I was in charge of the construction site back in my city and that
construction - and that construction was completed towards the end of February
and by then I had already met my business partner.
THE D.PRESIDENT: Because "it was finished in February 1995 and I have
already met business partner." All right.
THE INTERPRETER: Yes, because I had already met him in the course I
attended the previous year, the autocar course.
THE D.PRESIDENT: So when you told us that you started your partnership
in July 1995 that wasn't quite right?
THE INTERPRETER: No, because I had previously met him and I was
already helping him at this project as a technical supervisor. And I finish the
project to work the end of February '95.
MR PEEK: Now, between the end of February 1995, is that the time when
you worked only in the partnership that you said you started with your business
partner?
THE INTERPRETER: Yes, I was working with this business partner and at
the same time I was working with this construction company.
MR PEEK: And that is a separate construction company than the one
involved in the project you said finished in February 1995?
THE INTERPRETER: Yes, it was a different one.
MR PEEK: So that is the third job with a construction company you had in
Bolivia since you arrived back there in 1994, was it?
THE INTERPRETER: No, I was only helping this project where I was a
technical supervisor because the colleague who later on became my business
partner, gave me that position.”
The Tribunal is inclined to the view that the partnership must have commenced earlier that July 1995 since if it commenced at that time it is hardly likely that she could have left for Australia in August 1995. But even if it did commence some months earlier it is nevertheless surprising that she could have abandoned it after so short a period.
59. In relation to the bombing the following exchanges are recorded at 1 TS 78:
“THE INTERPRETER: When the media came to our place to ask us what was
this all about and I told them, and now I mention it to you, that the family
personally is not involved in any political group and especially because my
family doesn't have any enemies, so we don't know why this happen, by
whom it happens an what's the reason for these incidents to happen.
THE D.PRESIDENT: So you say, "family not involved in politics, has no
enemies and you don't know why this happened"?
THE INTERPRETER: No, because the Chief of Police from Cochabamba,
my city, told me that, years later, the same thing happen to another family.
MR PEEK: Haven't you maintained throughout your protection visa claim
in Australia that the events were directed at you because you had sacked an
employee who worked for your father, in the year before?
THE INTERPRETER: Because of the investigation that they carry out and
all the questioning to the family and if they cannot find a reason for these two
incidents to take place, they suppose that the only incident that I personally
have, or the family, was this one, was to fire one of my father's employees
because of - so that they suppose that because of - she was very aggressive
about it, and also her husband was, so they suppose that maybe her husband
did this. That's why that the husband of this employee that was working for
my father was detained for 48 hours, but he was set free because there were
not enough evidence. That's why it's -they think that these incidents were
against me because they cannot find any other reason for these two incidents
to take place.”
60. When asked how it came about that she personally had discharged one of her father’s employees the evidence took the following turn at 1 TS 79 and 1 TS 80:
“THE D.PRESIDENT: Why did you fire somebody? It wasn't your place to
fire an employee? All you had to do was report it to your father. He would
fire that person. You wouldn't have the power just to throw your father's
servants out, would you?
THE INTERPRETER: Because my - my father would let me, oh, and my
siblings when he could, leave us in charge of his business and in charge of the
administration. And there was not only me but also one of my brothers was
I got to tell that this lady was showing not much interest in her job.
MR PEEK: I am sorry, Deputy President.
I suggest that you have not established that you had any authority to dismiss
this person as you say?
THE INTERPRETER: Possibly not, but when my father leave his business
in our hands, especially if he is travelling, we take the responsibility for the
business.
MR PEEK: But you gave no evidence today about ever having worked for
your father's business. You gave evidence that you were always working in
your own architectural interests?
THE INTERPRETER: Since we were children we used to, or during the
school holidays, we used to help my father, and likewise, my other siblings,
and during the school holidays we'd help and even myself, after I became a
professional, during my holidays, if I have time, I would help in the business
if he ask me to, or he left me in charge.
THE D.PRESIDENT: So, "since we were children we helped in the
business, in holidays and even after I became a professional I helped in my
holidays." But you weren't in practice for long enough to have a holiday?
THE INTERPRETER: But while I was studying in Buenos Aires, sorry,
while I was studying in Argentina, and during my holidays, either winter
holidays, or summer holidays, I will go there and stay with my parents and
help them.”
61. When the hearing resumed on the second hearing day, the Visa Applicant gave further evidence about discharging an employee working in the Cochabamba Branch. However it was put to her that she had said at interview that she discharged the employee in Riveralta. She said that they are some distance from each other.
62. At 2 TS 89 the Visa Applicant was asked why it was she who went to Australia to help Maria. When asked why it was she, the Visa Applicant who went to Australia rather than any of her other numerous female relatives, she said that her mother couldn’t go because of work commitments and had been to Australia recently. An unmarried sister was unsuitable because she was not sufficiently tactful. She said at 2 TS 93:
“THE INTERPRETER: You see, the brothers are married and there is a
single sister but at that time she was in Riveralta.
MR PEEK: Why would her being in Riveralta prevent her from coming to
Australia to help your sister?
THE INTERPRETER: Because she usually helps my brother and because of
the way of being, of her character. You see, I'm the only one who's always
willing to help the family. You see, my sister in Riveralta, she's more
introverted, she's not - she's more shy, that's her character and that's why
there was no suggestion perhaps that she should go and besides because I'd
been abroad several times. So I was the person for taking the trip because the
other sister hadn't travelled much and I was able to travel alone.”
63. This lengthy evidence was then to the effect that, busy as she was with her job, her architectural practice and (perhaps) assisting her parents, she was able to drop everything and travel to Australia arriving on 29 August 1995 three days after Jason was born. It will have been noted that she was taking a university course in August 1995 (the month in which she came to Australia), and there was at least some evidence that her partnership commenced in July although it is more probable that it commenced at an earlier date. She was able, so she said, to take leave for a period of months in order to do so. As to why she arrived on 29 August 1995, 2 TS 94 reveals:
“MR PEEK: You were only planning to arrive in Australia, three days before
Maria's baby was due, weren't you?
THE INTERPRETER: She was programmed to have the baby on the 29th or
the 28th but the birth was two days before.
MR PEEK: But you were only ever planning to arrive on 29 August, weren't
you?
THE INTERPRETER: That was the first available flight - that was the first
available flight after I got the visa, that was the first available flight.
MR PEEK: How long were you planning to stay in Australia to look after
Maria, at that stage?
THE INTERPRETER: I was thinking a maximum of two months.
MR PEEK: Now, when you received the medical certificate from Australia,
you travelled from Bolivia to Santiago in Chile to make the visa application,
didn't you?
THE INTERPRETER: Yes, because it was the only way to do it quickly,
otherwise it would have to be requested by mail and that takes much long, and
that was quicker.
MR PEEK: When you attended the Australian Embassy in Santiago, you did
not disclose to them anything in relation to the explosions which had happened
in January, did you?
THE INTERPRETER: No, I didn't tell them anything, because a reason of
my trip and my application was as a tourist visa, I did not mention any of that.
MR PEEK: I suggest to you that when you told the Immigration Department
you were coming to Australia to visit your sister, that that was an excuse for
you to obtain a visa.
THE INTERPRETER: No, it was not an excuse because of the documents
I handed in. Those stated the reason and that was a reason, it was not an
excuse. That was the reason for coming to Australia.”
64. It was in these circumstances that Mr Peek put it to her that her evidence as regards her work commitments had been fabricated. She denied that this was so.
65. When questioned about the basis of her application for permanent migration in 1994 (and which application was refused) she said that she wanted to come to Australia to validate her degree. It was put to her that such a purpose would not require her presence in Australia. The following exchange is recorded at 2 TS 97:
“MR PEEK: What did you understand your degree would have to do with
an application based on your two sisters being in Australia?
THE INTERPRETER: Because under the documents I needed for family
concession they wanted to know if my career would be validated there. If
I could - they even asked me for my grades and for my former studies.
MR PEEK: I suggest to you that that indicates that the application was
being made on the basis of your qualifications rather than you having family
in Australia.
THE INTERPRETER: Yes, because at that time I wanted to apply and see
if I could validate there, but unfortunately I had just finished my studies.
I had no work experience. So my application was rejected by 85 points,
which should have been 90. It was rejected because I didn't have a lot of
work experience.
MR PEEK: So you were applying for independence or points test
migration to Australia, were you?
THE INTERPRETER: Yes, but among the questions it was also asked
how many relatives I had there. How close those relatives were, how close
a relationship. I suppose it was for evaluating the points there.”
66. And then when Mr Peek put it to her that she had sought a tourist visa in order to come to Australia on a permanent basis, the following exchanges took place as recorded at 2 TS 98 and 2 TS 99:
MR PEEK: And it is the case is it not, that at that point you wished to
come to Australia to live permanently?
THE INTERPRETER: Yes, you see, if my degree was validated why not
take the opportunity to work there and see if I could take other
post-graduate courses. I was also looking for post-graduate courses or
scholarships to do in other countries that wouldn't be Australia.
MR PEEK: When you came to apply for your visitor's visa, your
intention was to use that as a means of coming to Australia in order to stay
in Australia, wasn't it?
THE INTERPRETER: No, I already mentioned before, my main reason
was, which perhaps you don't believe, my main reason was to go and assist
Maria.
MR PEEK: You say your main reason. You have told us that was your
only reason, have you not?
THE INTERPRETER: Yes, it was the only reason - the only reason why I went.
MR PEEK: And you expect this Tribunal to believe that your intention to
stay in Australia permanently had changed between the end of 1994 and the
middle of 1995?
THE INTERPRETER: As a person who had just got a degree - I'd just
finished my degree, I was also looking for alternatives. I was also looking
for possibilities of obtaining a scholarship or validating my degree in
Australia.
THE WITNESS: In Bolivia.
THE INTERPRETER: Correction - in Bolivia. I was also looking, as any
young person, other roads, other ways, other places. These are things you
wish to do when you are young.
MR PEEK: Your evidence, however, is that had already started a
successful career in your field in Bolivia, wasn't it?
THE INTERPRETER: Yes, I was doing well in my job but in Bolivia the
situation is difficult. It's the same in all of Latin America. The interpreter
(52)S1
(53)P-24, 11 September 2003
(54)P-106-107, 12 September 2003
(55)P-18-19, 11 September 2003”
94. I should note that having considered the Respondent’s submissions, the parts quoted are in my view apposite and correct.
95. It might have been thought that the Respondent’s submissions were couched in terms which called for a reply and in respect of which the Applicant had been given a right to do so. As set out previously, the Applicant did not in fact avail himself of that right.
PART J – THE CHARACTER TEST
96. The Applicant’s final submissions make it clear that the character test is contested. The Tribunal considers that the Visa Applicant breached section 234 of the Act on numerous occasions over the years. This is so in relation to all of her various applications because she was not and knew she was not a refugee. Much of her evidence before the Tribunal was untruthful. The penalties prescribed for breaches of section 234 of the Act are such that her offences were very serious. (See also Clause 2.6 of Direction 21). On the evidence before, the Visa Applicant came to Australia in order to stay in Australia; any other conclusion is not possible. As I have indicated, her options had run out by early 1998. She did not depart at that time, preferring to remain in Australia. If she was afraid of a return to Bolivia, and I do not accept that she was, there were quite clearly options available to her in other parts of South America. Eventually but some considerable time later, she met and married her husband, the Applicant, and even then did not depart. Apart from her breaches of section 234 of the Act, the Visa Applicant breached section 235 of the Act in that she worked illegally for years both before and after marriage. She was prepared to work as a cleaner or nanny in Australia in preference to much more appropriate work in South America. As to why this should be so is unclear. It is possible that she was not as successful in architecture in Bolivia as she sought to suggest but this is speculation only. The Tribunal finds that she fails the character test.
PART K – MINISTERIAL DIRECTION 21 (“DIRECTION 21”)
97. References to numbered clauses in this Part H should be construed as references to numbered clauses in Direction 21.
98. The primary considerations are contained in Clause 2.3 of Direction 21 which reads as follows:
“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”
99. Clause 2.3 of Direction 21 must be considered in conjunction with Clause 2.5 of Direction 21 as follows:
“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).”
100. In the context of recidivism and deterrence I refer to my decision in Scott Anthony Copeland v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 144 and more particularly the decisions cited in paragraph 96 of Copeland (supra), and to which I need not refer specifically in this decision. I would note however that in Lachmaiya v Department of Immigration and Ethnic Affairs AAT 9295, 8 February 1994 at 35 Deputy President McMahon said:
“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 when dealing with the many reasons for coming to Australia.”
101. Everything that the Visa Applicant did was designed to achieve one aim and one aim only and that is permanent residence in Australia. As indicated previously, I do not propose to treat as serious the breach of the Foreign Acquisitions and Takeovers Act..
102. In the context of deterrence, it is probably true to say that this decision will not be known in Bolivia. However it will, I imagine, become known amongst the Bolivian community and indeed the South American community (now substantial) living in Australia. To reward a Visa Applicant who has behaved in the manner in which the Visa Applicant behaved would be to send entirely the wrong message. It is my view that her educational and financial advantages tend if anything to make her behaviour worse and not better.
103. As to Clause 2.12 I would anticipate that the Australian community would expect that a visa be refused to the Visa Applicant.
104. In respect of Clause 2.17 the Applicant will by reason of this decision suffer hardship. However he knew what the position was when he married her. And in fact he participated in at least some of her offences in that after they were married she was obliged to work, so he said, because of their mortgage commitments. The fact that the Applicant is not prepared to be re-united with the Visa Applicant in any part of the Americas and including the United States, is a matter of personal choice. .
105. This is not a matter in respect of which it is possible to exercise the discretion in favour of the Visa Applicant, and accordingly the decision under review is affirmed.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
AssociateDates of Hearing 11 and 12 September 2003
18 and 19 December 2003
27 July 2004
8 October 2004
Date of Decision 7 March 2005
Solicitor for the Applicant Mr M. Churchill
Solicitor for the Respondent Mr G Peek
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