Meilak and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 944

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 944

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/356

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Charlie Meilak

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date24 September 2003

PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter the Respondent with the direction that Ekaterina Vassilieva passes the character test pursuant to s 501(6) of the Migration Act 1958.                 

..............................................

RP Handley 

Deputy President

CATCHWORDS

IMMIGRATION  - spouse visa – subclass 309 spouse (provisional) visa – character test – failure of Visa Applicant to pass the character test on past and present general conduct – discretion that the Tribunal may apply where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against any hardship to the Applicant – held evidence indicates that there was no intentional immigration misconduct – decision of the Respondent set aside with a direction that the Visa Applicant passes the character test.

Migration Act 1958 ss 499, 501, 501(6)(c)

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

24 September 2003 Mr RP Handley, Deputy President           

1.      This is an application by Charlie Meilak (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 19 February 2003 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant’s spouse, Ms Ekaterina Vassilieva (“the Visa Applicant”).

2. At the hearing, the Applicant was represented by John Parnell, of Counsel, and the Respondent was represented by Andrew Grimm, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the videotapes tendered by the Applicant at the hearing. Mr Meilak, Frank Anic, Frank Panucci and Kaylene Meilak gave evidence in person and Ms Vassilieva and Anna Vassilieva gave evidence by conference telephone.

Background

3.      The Applicant, Charlie Meilak, was born in Parramatta, Sydney, on 26 August 1965 and is aged 38 (T p147).    Mr Meilak married his first wife, Kaylene Theresa Meilak, on 2 January 1988 (T p155).  That relationship ended in divorce on 28 December 1995 (T p152).  They had two children, Daniel Meilak, born 2 March 1990 and now aged 13, and Aaron Meilak, born 29 June 1991, and now aged 12.  Both  children reside with their mother.

4.      The Visa Applicant, Ekaterina Vassilieva, was born in the Petrogradsky District, Leningrad, Russia, on 30 April 1964 (T p145) and is aged 39.  Ms Vassilieva’s marriage to Alexander Leonidovich Vassiliev was dissolved on 2 March 2001 (T p343) and the divorce registered on 18 July 2001.  They had one child, a daughter, Anna Vassilieva, born on 18 October 1986 and now aged 16 (T p146), who lives with the Visa Applicant.

5.      On 30 October 1998, Ms Vassilieva arrived in Australia with her then husband and daughter on a subclass 676 short stay tourist visa issued on 12 October 1998.  On 7 December 1998, Ms Vassilieva lodged an application for a subclass 866 protection visa, which included her husband and daughter (T p6), and was granted a bridging visa.

6.      On 22 March 1999, a delegate of the Minister refused Ms Vassilieva’s protection visa application on the grounds that she was not a person to whom Australia has protection obligations under the Refugees Convention.  On 20 April 1999, Ms Vassilieva applied to the Refugee Review Tribunal (“RRT”) for a review of that decision, which was affirmed by the RRT on 20 November 2000 (T p658).  Meanwhile, in late 1999, Ms Vassilieva’s former husband left her and, on 20 August 2000, she met Mr Meilak and they commenced a relationship shortly thereafter.

7.      On 20 December 2000, Ms Vassilieva lodged a Notice of Appeal in the Federal Court of Australia claiming that procedures required to be observed under the Migration Act 1958 (“the Act”) were not observed and that the RRT had made an error of law in the interpretation of the legislation (T p654).

8.      On 15 June 2001, the Federal Court (Moore J) dismissed Ms Vassilieva’s application on the basis that there was no failure on the part of the Tribunal (T p658).  On 29 June 2001, Ms Vassilieva lodged a Notice of Appeal against that decision (T p664).

9.      On 22 September 2001, Mr Meilak and Ms Vassilieva were married by a civil celebrant in Sydney (T p148).  On 17 October 2001, Ms Vassilieva was granted a bridging visa permitting her to travel overseas for her honeymoon.  The visa was valid until 28 days after notification of the primary or review decision or withdrawal of the application (T p137).  On 21 October 2001, she departed Australia with Mr Meilak.  On 24 October 2001, Ms Vassilieva lodged a subclass 309 spouse visa application at the Australian High Commission in Kuala Lumpur and on 28 October 2001 they returned to Australia. 

10. On 7 November 2001, Ms Vassilieva discontinued her Federal Court Appeal. On 21 November 2001, Ms Vassilieva applied for Ministerial intervention pursuant to s 417 of the Act. This was refused on 24 January 2002 and Ms Vassilieva’s migration agent, Arthur Volonski, was notified of this decision by letter dated 6 February 2002. Mr Volonski notified Ms Vassilieva of this decision by letter dated 19 February 2002 addressed to her previous address (T p415), which she did not receive until early March 2002. On 5 March 2002, Ms Vassilieva applied for and was granted a Bridging Visa E valid until 19 March 2002. On 18 March 2002, a further Bridging Visa E was granted valid until 2 April 2002. On that date, Ms Vassilieva departed Australia.

11. On 23 July 2002, Ms Vassilieva was interviewed in relation to her spouse visa application at the Australian Embassy in Moscow. On 19 February 2003, a delegate of the Respondent decided to refuse Ms Vassilieva’s application on the ground that she did not pass the character test and that the discretion in s 501(1) should not be exercised in her favour. On 4 March 2003, Mr Meilak lodged an application for a review of this decision with the Tribunal.

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), and provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c)(ii), that “having regard to 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 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. The issue for the Tribunal to determine in this case is, therefore, whether Ms Vassilieva is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a subclass 309 (provisional) visa. If the Tribunal decides she is not of good character, it must consider whether to exercise the residual discretion under s 501(1) to not refuse the grant of a visa.

Evidence

Charlie Meilak (the Applicant)

16.     Mr Meilak is a lighting technician who lives at Hoxton Park.  He was divorced in 1995.  On 20 August 2000, Mr Meilak was having a cup of coffee at a table in Macarthur Square Shopping Centre when he noticed Ms Vassilieva sitting at a table by herself.  He asked if he could join her at the table and they began to talk.   He discovered that she was from Russia.  When he got up to leave, he asked for her telephone number, which she gave him.  A couple of days later, he phoned her and asked her to accompany him to the movies.  Thereafter, he phoned her every day and they went out together every weekend for the following six months.  Through this period their feelings for one another became stronger and, in February 2001, Mr Meilak proposed to Ms Vassilieva.  They were married on 22 September 2001.  They did not live together before they were married and Ms Vassilieva did not move in with him immediately after their wedding because her daughter Anna was still at school at Campbelltown and her schooling had recently been disrupted.  However Ms Vassilieva spent the weekends with Mr Meilak.

17.     They moved in together in the week before Christmas 2001 and lived together until April 2002 when Ms Vassilieva and Anna returned to St Petersburg.  They also spent a holiday together with all their respective children on Moreton Island in October 2001 and Mr Meilak and Ms Vassilieva went on their honeymoon in Kuala Lumpur shortly thereafter.  Mr Meilak said his two boys spend every second weekend with him.  He picks them up on Friday and his ex-wife, Kaylene, collects them on Sunday afternoon.  He also phones them every Thursday and they spend half the school holidays with him.   They spent Christmas 2001 with him and Ms Vassilieva and Anna.  Mr Meilak provided five video tapes and invited the Tribunal to look at extracts from each. These were his wedding video (A1), a video taken during their family holiday at Moreton Island in Queensland in October 2001 (A2), a video of Mr Meilak and Ms Vassilieva’s honeymoon in Kuala Lumpur in October 2001 (A3), a video of Christmas and New Year 2001 (A4), and a video dated 1 April 2002 of Ms Vassilieva talking to the camera on the day before she left Australia for St Petersburg (A5).

18.     Mr Meilak said in July 2002 he flew to Moscow in order to be present when his wife was interviewed at the Australian Embassy.  He accompanied her to the Embassy for the interview although he was not actually present when she was interviewed.  The day after his wife’s interview in Moscow, Mr Meilak spoke to a female Australian officer at the Embassy, mentioning two videos, copies of which he had handed in to the Australian High Commission in Kuala Lumpur with his wife’s spouse visa application.  The officer told him that there was no need for them to look at these videos because they believed the marriage was genuine.  

19.     After his visit, Ms Vassilieva went home to St Petersburg.  Mr Meilak said his wife did not wish to remain in Russia and he was able to arrange permanent residence for her in Malta because he holds Maltese citizenship in addition to his Australian citizenship.   Mr Meilak was born in Australia to parents of Maltese background who, in their sixties, returned to live in Malta.   In about July 2003, Ms Vassilieva and Anna moved to Malta where she has rented a unit.  She is supporting herself and Anna by working in a hotel as a housemaid.   Mr Meilak’s parents live nearby if she needs support.  

20.     In July 2003, Mr Meilak went to Malta and spent a month with his wife.  Mr Meilak said he speaks with his wife every day on the phone and once a week they exchange letters.  They take turns to phone one another.  Sometimes if his boys are with him, they speak to Ms Vassilieva and he and the boys also speak to Anna.  Mr Meilak said he and his wife love each other very much.  He does not want to live anywhere other than Australia because of his two boys.   However, if his wife is refused a visa, he will go to Malta to live with her. 

21.     Mr Meilak was asked about what he knew of his wife’s migration status in Australia when they first met in August 2000.   Mr Meilak said Ms Vassilieva told him that she was applying for refugee status and of her appeal to the RRT.    He realised that she probably did not, at that time, have the right to stay permanently, although he did not understand immigration law.   She told him that she had entered Australia on a visitor visa and had then applied for refugee status because of the persecution she had suffered in Russia as a result of her religion.

22.     Mr Meilak said that his wife was not working when they first met in August 2000.  However, in about December 2000, she did work part-time as a cleaner and in a take-away food shop.  He understood that she was permitted to work in Australia.  He only discovered that she did not have permission to work for some of that period after she left.  She had been under the impression that she did have permission to work.  Mr Meilak remembered his wife receiving a letter in early March 2002 stating that her visa had expired and she had to depart Australia.

Ekaterina Vassilieva (the Visa Applicant)

23.     Ms Vassilieva said she follows the faith of a Jehovah’s Witness and in 1997/1998 suffered persecution as a result.   When she lived with her parents in St Petersberg, a note was left on their door stating “death to Satan’s people”..   She also had water and eggs thrown at her and received abusive and threatening phone calls.  She and her husband then moved to a different location in St Petersburg but, in August 1998,  when she and her husband got into the lift in their apartment building, some sort of smoke-bomb was thrown into the lift and she believed that her life had been threatened.  She was very scared as a result and shortly afterwards she and her husband went to Finland, her husband being half Finnish.  They approached a policeman to try and explain their problems in Russia, but he said that he could not help them and if they stayed in Finland they would go to prison.   They therefore returned to St Petersburg still fearful of what might happen.   Her husband then made arrangements for them to leave Russia and applied for a visitor visa to travel to Australia.   Ms Vassilieva said she was in a state of shock at this time and her husband took care of all the arrangements.   She can not recall whether she completed the visitor visa application form or whether he did this.   She did not remember that the stated reason for their visit was tourism.  She said she just wanted to get away from Russia and stay somewhere else for a while.  

24.     After arriving in Australia, Ms Vassilieva said she saw an advertisement in a newspaper placed by a migration agent and went to see this agent, Arthur Volonski.   She told Mr Volonski what had happened to her in Russia and he told her that she could apply for a refugee visa.  Ms Vassilieva said she knew nothing about such things before she left Russia.  All she knew was that she wanted to leave.   It was only when she spoke with Mr Volonski, that she decided to stay in Australia. 

25.     Ms Vassilieva said she met Mr Meilak at Macarthur Square.  She loves him very much and she knows he also loves her.   They are very unhappy at not being together.    They want to be together as a family with all the children.   They were very happy as a family in Australia.   Ms Vassilieva said she speaks to Mr Meilak on the phone every day and they write letters to one another.  She said her husband cannot be separated from his children who love their father as he loves them.   Essentially, this means that she and Mr Meilak can only live happily together in Australia. 

26.     Ms Vassilieva said she would abide by Australian laws as she tried to do before.  She had a tax file number and paid tax and tried to do everything that she was required to do by the stated time.   She was not properly informed of what she had to do and so she made a mistake. She was not aware of the expiry of her bridging visa on 5 December 2001.   She thought that it would continue in operation until she received a letter from the Minister notifying her that it had expired.  Nobody informed her that the bridging visa would terminate when she applied to the Minister for his intervention.    Thus, she was unaware that between 6 December 2001 and 4 March 2002 she had no valid visa for Australia.   Believing she had permission to work, she continued to work through this period one day a week as a cleaner and in a take-away two or three days a week, depending on how busy they were.  Ms Vassilieva said if she had known her visa had expired on 5 December 2001, she would have immediately applied for another visa.

27.     Ms Vassilieva said she did not receive notification of the Minister’s decision to refuse her request for Ministerial intervention until about 4 March 2002.   Mr Volonski addressed his letter of 19 February 2002 to her old address even though she had notified him of having moved to live with Mr Meilak.  As a result, it was only when she went to check her mail at the old address that she found his letter.   Almost immediately on receiving the letter, on 5 March 2002, she went to the Department’s office at Parramatta where she was issued with a bridging visa.

28.     Ms Vassilieva said that when she applied for refugee status, her application included her ex-husband and daughter.   As a result, her ex-husband’s and daughter’s names were automatically included on later documents.  Her ex-husband was officially regarded as her husband until their divorce was registered in Russia on 18 July 2001.   In order to obtain a divorce, Ms Vassilieva had to send her passport to Russia to get it stamped with a divorce stamp and, until then, she was not able to obtain the official divorce papers.   The papers arrived in Australia much later. 

29.     Ms Vassilieva was asked about the Medicare cards for which she applied.  She said that after she made her application for a protection visa, she applied for a Medicare card which included her ex-husband’s and daughter’s names.   When one card expired, she applied for another one although she cannot now remember the exact dates.   She did not specifically include her ex-husband in the application for the card.   However, with her application she had to provide her immigration papers and because her ex-husband was included in those papers and in her protection visa application, he was included on the card as a member of her family.   Ms Vassilieva she that it was only when she received her divorce papers from Russia, that she was then able to inform the Department that she was divorced and she applied for and later received a card with only her name and her daughter’s name on it.

30.     Ms Vassilieva said that after she and Mr Meilak were married, she applied for a bridging visa B to enable her to leave Australia and return.   She and Mr Meilak went to Kuala Lumpur for their honeymoon but also to lodge her spouse visa application.  

31.     Ms Vassilieva said she left Australia on 2 April 2002 and returned to St Petersburg.   She remained there until June 2003 when she and her daughter moved to Malta, Mr Meilak having been able to arrange residence for them there.   Ms Vassilieva said she does not know where her daughter may wish to live in the future.  Anna had some contact with her father in Australia after he and Ms Vassilieva were divorced.   He ex-husband is now in Russia and went to visit her parents about three or four weeks ago in order to repay some money which he owed her father.   Ms Vassilieva said her mother is 78 and her father is 77. 

32.     Ms Vassilieva acknowledged that she owes money to the Minister in connection with her Federal Court case.  Her husband has repaid some of this and if she is permitted to return to Australia she will repay the whole sum.  

Anna Vassilieva

33.     Anna said she has a good relationship with Mr Meilak and his two children and her mother is happy with Mr Meilak.   Anna has nowhere else to live except with her mother and would like to live with her and Mr Meilak’s family in Australia. 

Frank Anic

34.     Mr Anic is an accountant who lives in Cecil Hills.  He was a witness at Mr Meilak’s and Ms Vassilieva’s wedding in September 2001, having known Mr Meilak for over seven years.   He first met Ms Vassilieva about a month before the wedding after which he saw her on a number of social occasions before the wedding took place.    After the wedding, Mr Anic and his wife, who went to school with Mr Meilak, would have dinner with Mr Meilak and Ms Vassilieva on a regular basis.  They were friends and lived nearby – about ten or fifteen minutes away.  

35.     Mr Anic said Mr Meilak told him that Ms Vassilieva had some sort of refugee visa and had divorced her previous husband.    He did not, however, know her background in any detail.  Mr Anic said Ms Vassilieva seemed genuine and he is convinced her marriage with Mr Meilak is a genuine one.   Mr Anic described Mr Meilak’s character as faultless.   

Kaylene Meilak

36.     Ms Meilak is Mr Meilak’s former wife.   Currently, she undertakes home duties and lives in Erskine Park.   She and Mr Meilak were divorced in 1999 and their children, Daniel who is aged 14, and Aaron who is aged 12, live with her..  However, Mr Meilak has them every second weekend and in the holidays.   He gets on well with the boys, especially with the older boy because of their shared interest in soccer.  Ms Meilak said she met Ms Vassilieva when she attended soccer matches to watch Daniel play and they also had some contact at Christmas time 2001.  Ms Meilak said that the marriage between Mr Meilak and Ms Vassilieva is a genuine one.   Knowing Mr Meilak, for him to commit himself to marriage is a big step.   She said if Mr Meilak had to go overseas to live, their boys would be adversely affected because they love their father. 

Frank Panucci

37.     Mr Panucci is a police officer and Ms Meilak’s fiance with whom he lives at Erskineville Park.   Mr Panucci said he knows Mr Meilak and met Ms Vassilieva at soccer matches and when they exchanged the children every second weekend.   Mr Panucci said Mr Meilak’s and Ms Vassilieva’s marriage appeared to be a genuine one.   He said the boys loved their father and would be devastated if he had to go overseas to live.  

Submissions

Applicant

38.     Mr Parnell, for the Applicant, submitted the Tribunal should take into account the state of mind of Ms Vassilieva at the time of her application for a visitor visa.    She was in trauma as a result of religious persecution and wanted to go anywhere to get away from Russia.   There was no overt consciousness on her part of an intention to pursue an application for a protection visa.  The RRT, for example, did not accept that her visit to Finland with her husband was a serious attempt at asylum in that country.   Mr Parnell said that it was her ex-husband who selected Australia as a destination giving them the opportunity to get away from Russia.   On arrival in Australia, Ms Vassilieva saw an advertisement by a migration agent whom she went to see.   When she explained her situation, the agent advised her that she could lodge an application for a protection visa.  Mr Parnell noted that there has been no allegation of fraud on Ms Vassilieva’s part, nor any attempt by her to trick the Australian authorities.  Her conduct in relation to her entry to Australia does not support a finding that she is of bad character.  

39.     With regard to the Respondent’s allegations that she failed to notify the Department of her divorce, Mr Parnell said Ms Vassilieva was justified in not regarding her divorce as finalised until after the divorce had been registered – on 18 July 2001 – and she had received the papers sometime afterwards.  The Respondent also points to her being an unlawful non-citizen between 6 December 2001 and 4 March 2002.   However, Mr Parnell submitted that Ms Vassilieva was not aware until she received notification of the Minister’s refusal of her request for Ministerial intervention in early March 2002, that she had to approach the Department for another bridging visa.    She believed that she had permission to work during this period, working as a part-time cleaner and in a take-away shop.  She had obtained a tax file number and paid taxes as required.   With regard to Ms Vassilieva’s debt to the Commonwealth arising from the Federal Court action, Mr Parnell said her husband has assumed responsibility for the debt, has already paid $1000 towards this and will pay the remainder in due course.  

40. In summary, Mr Parnell submitted that Ms Vassilieva passes the character test. However, in the alternative, if the Tribunal decides otherwise, then consideration must be given to the exercise of the Minister’s discretion under s 501(1) of the Act. Mr Parnell contended Ms Vassilieva has not been guilty of serious misconduct. He said there are significant compassionate considerations in this matter. Mr Meilak is an Australian citizen, is part of the Australian community and has lived here all his life. His two boys from his former marriage are still at school. If Ms Vassilieva is refused a visa, Mr Meilak will be faced with a significant dilemma. He says that he will go to Malta to be with his wife but this will be disastrous for his two children with whom he has a good and loving relationship. Mr Parnell said it is clear from the video-tape evidence that Ms Vassilieva and her daughter and Mr Meilak and his two boys constitute an ordinary functioning family. He noted that the video-tapes evidenced good interaction between Ms Vassilieva, her daughter Anna and Mr Meilak and his two boys. He submitted that there is no question that the relationship between Mr Meilak and Ms Vassilieva is a genuine one on both parts. The discretion in s 501(1) should be exercised in favour of Ms Vassilieva.

Respondent

41.     Mr Grimm for the Respondent, submitted Ms Vassilieva fails the character test, in particular as a result of the false and misleading statements in her visitor visa application and because she was an unlawful citizen and worked without permission between 6 December 2001 and 4 March 2002.  Mr Grimm noted that Ms Vassilieva was unclear as to who completed her visitor visa application form.  He said, at best, she was reckless if she let her husband make all the arrangements.   The application states Ms Vassilieva’s intention was a 10 day visit for tourism purposes, whereas, in fact, her intention was to leave Russia.  

42. With regard to the exercise of the discretion in s 501(1), Mr Grimm submitted that Ms Vasillieva’s breaches of Australian immigration law – her being in Australia unlawfully and working without permission – were very serious. Moreover, she made a false and misleading declaration on an approved form – again, a matter regarded as very serious. There is a need to protect the Australian community against such conduct and the Australian community would not expect that such a person would be granted a visa. With respect to the best interests of Mr Meilak’s children, although Mr Grimm acknowledged that they could be affected by a refusal of a visa to Ms Vassilieva, he submitted that hardship to the children does not outweigh the other primary considerations.

Application of the Law and Findings

43. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Vassilieva passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry …

44.     In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).

45. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Vassilieva, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

46.     Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test..  Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

47.     Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings.   The Tribunal has no doubt that the marital relationship between Ms Vassilieva and Mr Meilak is genuine on both parts.  Having watched extracts from the five video-tapes tendered (A1 - A5), which illustrate the interaction between Ms Vassilieva and Mr Meilak and between them and their respective children in a variety of different situations, the Tribunal finds that their relationship is a caring and loving one.  Both Ms Vassilieva and Mr Meilak gave evidence to this effect and the witnesses who gave evidence on their behalf also attested to the genuineness of the marriage.  

48.     The Tribunal accepts Ms Vassilieva’s evidence that she left it to her former husband to make the arrangements which led them coming to Australia.   She was clearly frightened by a series of events in St Petersburg which led her to believe that she was being persecuted because of her religion as a Jehovah’s Witness.   Her evidence is that, at the time, her only thought was to escape Russia, and she left it to her husband to do whatever was necessary.  The visitor visa application states that her intended stay would be 10 days and the purpose of the visit was tourism.   Ms Vassilieva said that she did not form an intention to stay in Australia beyond this until she had consulted a migration agent, Arthur Volonski, whose advertisement she saw in a newspaper.  Having heard her story, Mr Volonski advised her that she could apply for a protection visa and it was at this point that Ms Vassilieva formed an intention to stay longer in Australia.   At that time, she knew nothing of Australia’s immigration laws.   With the lodging of her protection visa application, Ms Vassilieva was granted a bridging visa entitling her to work. 

49.     Ms Vassilieva’s protection visa application was refused by the Department on the grounds that she was not a person to whom Australia owed protection obligations, a decision which was affirmed by the RRT.   Ms Vassilieva then sought judicial review of that decision by the Federal Court.   When her application was dismissed, with costs, she appealed to the full Federal Court, but, on 7 November 2001, discontinued that appeal. 

50.     At that time, Ms Vassilieva had recently obtained a bridging visa B, granted on 17 October 2001, permitting multiple travel and enabling her to remain in Australia and work until 28 days after notification of the primary decision or of a review decision or after withdrawal of her application.   It is clear that Ms Vassilieva did not understand that the effect of discontinuing her Federal Court appeal meant that her visa entitled her to remain in Australia for only 28 days from that date.  On 21 November 2001, she applied for Ministerial intervention and assumed that she would be notified of the outcome of that decision and any effect it might have on her status in Australia.    She did not understand that she needed a new bridging visa associated with her application for Ministerial intervention. 

51.     Thus, between 6 December 2001 and 4 March 2002, Ms Vassilieva was unlawfully in Australia and worked without permission.   The Tribunal accepts that Ms Vassilieva was unaware of this and, had she been aware of the expiry of her bridging visa B, would have taken the necessary steps to renew this.   In the Tribunal’s view, there is no evidence to support an imputation that she deliberately remained in Australia and worked as an unlawful non-citizen.

52.     The Tribunal notes Ms Vassilieva’s evidence that her former husband left her and that she subsequently applied for a divorce.   While the decree nisi was granted on 2 March 2001 (T p343), the Tribunal accepts that the divorce did not take effect until registration on 18 July 2001, and she would not have received the divorce papers until sometime after this.  The Tribunal notes that Ms Vassilieva’s application to enable her to travel overseas was lodged on 3 October 2001 and that with her application she submitted a copy of her marriage certificate to Mr Meilak.   On 11 October 2001, the Department requested that she provide a copy of her divorce certificate, which she did.  

53.     With regard to the Medicare cards which Ms Vassilieva was issued, the Tribunal notes that Ms Vassilieva’s requests to the Department for letters to enable her to apply for a Medicare card were submitted on 2 January 2001 and 7 July 2001, prior to her divorce being finalised and the discontinuation of her appeal in the Federal Court.    The Tribunal accepts Ms Vassilieva’s explanation that once she submitted the departmental letter with her application for a Medicare card, she was automatically issued with a replacement card still including the name of her ex-husband.     It was only when she next renewed her Medicare card after she had received notification of the registration of her divorce, that she notified Medicare of the dissolution of her first marriage.   

54.     While the making of a false or misleading declaration on a visitor visa application is a serious matter and remaining in Australia and working as an unlawful non-citizen for a period of approximately three months is a serious breach of Australia’s immigration laws, the Tribunal is not convinced that Ms Vassilieva intended this misconduct.   In the case of the visitor visa application, the Tribunal accepts that she left arrangements with regard to their travel to Australia to her ex-husband and did not put her mind to the questions asked in the visitor visa application.  In the case of the expiry of her bridging visa on 5 December 2001, she made what, in the view of the Tribunal, was an understandable mistake as to the effect of her discontinuing the Federal Court appeal and her application for Ministerial intervention.  The Tribunal finds that she did not intend to remain in Australia through the period 6 December 2001 to 4 March 2002 without a valid visa, nor did she intend to work without permission. 

55.     The Tribunal had regard to the discussion of what is meant by good character in Goldie (supra) and Re Msumba (supra), which refer the decision-maker to the applicant’s “enduring moral qualities”, and to the statement in Re Msumba (supra) at para 37 that an applicant is not required to meet the highest standard of integrity: rather the issue is whether the deficiencies in his or her character as such “that is in the public good to refuse the visa”. With reference to this discussion and the evidence as to Ms Vassilieva’s character, background and situation, and having observed her in the company of Mr Meilak and his family on the video tapes, the Tribunal is not satisfied that her character is so deficient as for it to be for the public good that she should be refused entry. Pursuant to s 501(6), she therefore passes the character test.

56. The Tribunal notes that even if it were to find that Ms Vassilieva does not pass the character test, it would exercise the discretion in s 501(1) to not refuse the grant of a visa. In relation to the primary considerations to which decision-makers are directed by Direction No 21, in the Tribunal’s opinion neither the protection of nor the expectations of the Australian community require that Ms Vassilieva be excluded from Australia. The Tribunal is not satisfied that Ms Vassilieva is other than a law-abiding citizen who has made a number of unintended mistakes. The likelihood of any repetition is minimal and while deterrence is always an important consideration in respect of breaches of Australian immigration law, in the Tribunal’s view the Australian community would take a humane view having regard to the other considerations in this case.

57.     Particular regard should be had to the third primary consideration, the best interests of the children, in particular, Mr Meilak’s two sons, Daniel who is 13, and Aaron who is 12.   All the evidence supports a finding that these two boys and their father share a mutually close and loving relationship and the Tribunal accepts that they would be devastated if their father were to leave Australia to live overseas.   Clearly, it is in their best interests that he remain in Australia.   The Tribunal notes that Ms Vassilieva’s daughter, Anna, who is now nearly 17, lives with and is dependent upon her.   Anna spent approximately three and a half years in Australia between 30 October 1998 and 2 April 2002, during which time she went to school, was acclimatised into the Australian community and learned to speak good English.  Her home until this time has always been with her mother and the Tribunal finds that at least in the short term, prior to her reaching the age of majority, it continues to be in her best interests that she lives with her mother.  The Tribunal notes from her evidence that she has good relationship with Mr Meilak and his two boys.

58.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states, 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 removal or cancellation would cause to the non-citizen’s family; genuine marriage to a Australian citizen, bearing in mind 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 entry 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; and any evidence of rehabilitation and recent good conduct. 

59.     The Tribunal has already found the relationship between Ms Vassilieva and Mr Meilak is a genuine marital relationship.   Mr Meilak’s evidence is that he knew from fairly early on in their relationship that Ms Vassilieva was pursuing an application to remain in Australia based on her claim for refugee status.    Whilst it is apparent that Mr Meilak must have been aware that Ms Vassilieva did not have permission to remain permanently in Australia at the time when they were married, clearly he was hopeful that her status would be resolved.

60.     The Tribunal finds that both Ms Vassilieva and Mr Meilak would suffer significant hardship if she were not permitted to return to Australia.    In particular, the Tribunal is concerned that Mr Meilak, as an Australian citizen who was born and brought up in Australia and whose two sons by his first marriage live here, is placed in a dilemma requiring him to choose between his children and his wife.   Ms Vassilieva is currently in Malta with Anna, and Mr Meilak, who has dual Maltese and Australian citizenship, would be able to live there permanently.   However, to do so, would clearly put at risk his relationship with his two boys and also cause them significant hardship.

61.      In the Tribunal’s view, weighing up the primary and other considerations, Ms Vassilieva is no threat to the Australian community and the community would take a humane view, particularly having regard to Mr Meilak’s situation.   Thus, the Tribunal concludes that the discretion not to refuse the grant of a visa should, if Ms Vassilieva were not to pass the character test, be exercised in her favour.  

62. In conclusion, the Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Ekaterina Vassilieva passes the character test pursuant to s 501(6) of the Act.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  4 and 5 September 2003
Date of Decision  24 September 2003
Representative for the Applicant               Mr J Parnell, Counsel
Representative for the Responden            Mr A Grimm, Solicitor