Mogford and Minister for Immigration and Multicultural and Indige Nous Affairs

[2003] AATA 563

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 563

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2002/1371

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Ann Mogford

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date17 June 2003

PlaceSydney

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

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

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – subclass 310 Interdependent Partner visa – refusal on character grounds - character test – general conduct – examination of the Visa Applicant’s immigration history and general conduct – examination of the documents presented to the Refugee Review Tribunal - discretion that the Tribunal may apply where the Visa Applicant fails the character test – necessity to balance the expectations of and protection of the Australian community against the hardship to the Applicant – held that the Visa Applicant’s conduct is not so deficient as to show it is for the public good that her entry be denied – decision under review set aside with a direction to the Respondent that the Visa Applicant passes the character test.

Migration Act 1958 ss 499, 501, 501(1), 501(6)

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

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

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

17 June 2003 Mr RP Handley, Deputy President          

1.      This is an application by Ann Mogford (“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 23 August 2002 to refuse the grant of a subclass 310 Interdependent Partner visa to the Applicant’s partner, Maria Luz Osorio Salazar (“the Visa Applicant”).

2. At the hearing, the Applicant was represented by Simon Jeans, Solicitor, of Simon Jeans & Associates, and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the other documents tendered by the parties. Oral evidence was given by the Applicant, her daughter Kim Mogford, Laurel Edwards and Maria Galvis and the Visa Applicant gave evidence by conference telephone from Spain.

Background

3.      The Applicant, Ann Mogford, was born in England on 18 August 1947 and is aged 55.   Ms Mogford immigrated to Australia with her family in 1949 and was granted Australian citizenship on 14 December 1994.  Ms Mogford married Terry Mogford on 11 December 1965.  This marriage was dissolved by divorce on 1 October 1993 (T p129).  Three children were born to this relationship: Craig Richard Mogford, Patricia Lorraine Sanders (nee Mogford) and Kim Marie Mogford, all of whom are over the age of 21 years.

4.      The Visa Applicant, Maria Luz Osorio Salazar (who is also known as Patricia), was born in Santa Rosa De Cabal, Colombia, on 4 June 1951 and is aged 52.  Ms Salazar has one son, Carlos Andres Botero, born 16 December 1979, and now aged 23,  who is currently living in Miami. 

5.      Ms Salazar came to Australia on 9 August 1997 on a visitor visa valid for three months (T4).  She stated on the Incoming Passenger Card that she intended to stay for 21 days and that she was a widow.  On 28 August 1997, Ms Salazar applied for a protection visa (T6).  This was refused on 23 February 1998 (T8), and the decision was affirmed by the Refugee Review Tribunal (“RRT”) on 1 March 2000 (T9).

6.      On 15 September 1998, Ms Salazar met Ms Mogford at the Imperial Hotel in Erskineville, Sydney.  They commenced a relationship in October 1998 and, on 5 March 2000, commenced living together (T p207).

7.      On 15 April 2000, Ms Salazar applied for Ministerial intervention.  This was refused on 23 May 2000 (T p9).  On 15 July 2000, Ms Salazar departed Australia.   (T22). 

8.      On 5 December 2000, Ms Salazar lodged an application for a subclass 310 Interdependent Partner visa at the Australian Embassy in Madrid (T10). This was rejected on 26 October 2001 on the ground that the relationship between the Applicant and Visa Applicant had not existed for the required 12 month period (T12).

9.      On 3 May 2002, Ms Salazar lodged a further application for a subclass 310 Interdependent Partner visa (T14). On 15 May 2002, Ms Salazar and Ms Mogford were interviewed at the Australian Embassy in Madrid (T16). On 23 August 2002, a delegate of the Respondent decided to refuse the grant of a visa to Ms Salazar on the ground that she did not pass the character test because of her past general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”). 

10.     On 18 September 2002, the Applicant lodged an application for review of this decision with the Tribunal.

Relevant Law and Policy

11. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:

Having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)the person’s past and present general conduct;

the person is not of good character;…

12. 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”..

13. 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.

14. The issue for the Tribunal to determine in this case is, therefore, whether Ms Salazar 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 310 Interdependent Partner visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

Evidence

Kim Mogford

15.     Ms Mogford, who is the Applicant’s youngest daughter, provided a Statutory Declaration dated 17 April 2003 (A1).  She is currently working as an assistant providing hotel and patient services at Sydney Eye Hospital.  Ms Mogford moved to Sydney in February 2003 to live with her mother and provide her with emotional support.   For the previous five years, she lived in Morwell, Victoria.

16.     Ms Mogford said she had known of Patricia since 1998 and they had spoken on the phone but they did not meet until Easter 2000 when her mother and Patricia stayed for a week.  In Ms Mogford’s opinion, her mother and Patricia have a good, honest relationship and enjoy each other’s company.  Ms Mogford found Patricia a genuine, honest person.  She was open with her feelings and did not seem to embellish things.  Ms Mogford learned about Patricia’s situation mainly from her mother although Patricia did tell her that the situation in Colombia is very bad and living as a lesbian is very difficult.  Ms Mogford is aware that Patricia applied for refugee status in Australia.

17.     Ms Mogford said her mother and Patricia have been separated for nearly three years which “has been a big stress on Mum”..  Before Ms Mogford came to Sydney, her mother was very depressed and told Ms Mogford she was gambling a lot on poker machines.  At least she now has someone to talk to and is no longer going to the club and spending a lot of money on the poker machines.

Laurel Edwards

18.     Ms Edwards, who is retired, provided a Statutory Declaration dated April 2002 (T20 p233) attesting to the genuineness of the Applicant’s relationship with Patricia.  Ms Edwards said she has known the Applicant for about 12 years.  They were formally neighbours and have remained good friends.  Ms Edwards first met Patricia in about December 1998 when she accompanied the Applicant on a visit to see Ms Edwards.  The Applicant comes to see her regularly and takes her shopping because Ms Edwards does not drive.

19.     Ms Edwards said the Applicant and Patricia have a very loving relationship and the Applicant has been devastated by their separation.  Ms Edwards said:

I found Patricia to be a very hones little girl – very friendly and very sincere.  She loves Ann very much.  It is devastating to see them apart.

She said Patricia was very loyal, a good worker, a good cook and a nice home person.  Patricia never told Ms Edwards the details of her situation while she was in Australia.  Her English was not very good.  But Ms Edwards does not think Patricia would make dishonest statements intentionally.

Maria Galvis

20.     Ms Galvis provided a Statutory Declaration dated 13 May 2003 (A2) and had previously provided a Statutory Declaration dated 23 April 2002 (T20 p227).  Ms Galvis works as a cleaner.  She first met Patricia early in 1998 at English classes in Surry Hills and they became good friends.  They both had similar experiences in Colombia and had suffered discrimination and persecution as lesbians.  Initially, they went shopping and spent weekends together.

21.     Ms Galvis first met the Applicant early in 1999, a few months after the Applicant and Patricia had met.  Ms Galvis often spent time with them at weekends.  She said the Applicant and Patricia were a happy couple.  Before Patricia met the Applicant she was very sad and alone as a result of her experiences in Colombia.   Ms Galvis has remained in contact with the Applicant since Patricia left Australia.  The Applicant was devastated by the separation which has affected all aspects of her life – financially, socially and emotionally.  She became very depressed and no longer a happy person.  She needs plenty of support from her friends and family.

22.     When Ms Galvis first met Patricia at English classes, they were both applying for refugee status.  Ms Galvis applied because she suffered persecution in Colombia because of her sexual preferences.  It was very traumatic and she is still recovering from her experiences – she was the victim of a “bashing” when they tried to kill her.  She lost her job, her friends and her family because of persecution as a lesbian.  The persecution of lesbians is part of the social cleansing in Colombia – the cleansing of Colombian society of “disposable persons” such as homosexuals, prostitutes, beggars and homeless people who are treated as scum.

23.     Ms Galvis said she arrived in Australia on 11 August 1997 and lodged an application for a protection visa soon afterwards.  Initially, the Department rejected her application and she had to wait for a RRT hearing when she gave evidence.  Eventually, Ms Galvis was granted a protection visa on 22 January 2001.

24.     Ms Galvis said in her opinion Patricia is a person of good character who would not harm anyone.  Indeed, she is a person who will help others if she can.  She would help other people when they first arrived in Australia and were having difficulty understanding what to do and how to get a job.  She is responsible and conscientious and would be an asset to the Australian community.

Ann Mogford (the Applicant)

25.     Ms Mogford provided a Statutory Declaration dated 17 April 2003 (A3).  She was born in England on 18 August 1947 and migrated to Australia with her parents at the age of two.  She was granted Australian citizenship on 14 December 1994.  Her parents are deceased.  She has a sister who is married and lives in Victoria.  Ms Mogford is close to one of her sister’s two children, Catherine.  Ms Mogford was married to Terry Mogford “for almost 25 years”.  They were divorced on 1 October 1993 but remain friends.  They have three children:  Craig is 36, and married with two children aged 9 and 7; Trish is 34; and Kim has been living with Ms Mogford since March 2003.  Trish is now separated from her husband and will be moving to Sydney before the end of this year.

26.     Ms Mogford moved to Sydney 15 years ago and operates a small courier business, Planet Couriers, from her home in Sans Souci.  She employs one other driver.

27.     Ms Mogford said she first met Patricia at the Imperial Hotel in Erskineville in September 1998.  Even though Patricia spoke very little English and Ms Mogford spoke no Spanish, they were instantly attracted to one another and, with the help of Patricia’s friend Maria Galvis, began communicating and commenced a relationship.  Ms Mogford said she liked Patricia’s bubbly character, the fact that she is good with people and is a nice person.  She would always help Ms Mogford – for example, cook her dinner if Ms Mogford was out at work all day.  Ms Mogford said she loves being with Patricia.  They used to spend all their spare time together and did everything together.

28.     Ms Mogford said Patricia told her of the problems she had experienced in Colombia because she was a lesbian.  Patricia told her how “two guys on a motorbike” fired shots into her shop, how she was persecuted on many occasions, that it was very hard for lesbians in Colombia and that she was very frightened.  Ms Mogford was aware within the first week of meeting Patricia that she came to Australia “to have a look” and with a view to applying for refugee status.  Patricia told Ms Mogford that the matter was under review and Ms Mogford accompanied Patricia to see her solicitor, Michael Jones, on a few occasions.

29.     Ms Mogford said she was not aware that Patricia had provided documents to the RRT in early October 1998 that the RRT found to be false.  Ms Mogford did not attend the RRT hearing which Patricia attended with her son Carlos.  Patricia later told Ms Mogford that she had telephoned a contact in Colombia whom she had asked to obtain documents for her from the police and to whom she paid money for this purpose.  The RRT decision was made on 1 March 2000.  On 5 March 2000, Patricia moved in with Ms Mogford.  Previously, Patricia had been living with her son, Carlos, but he had by then moved in with his girlfriend who was pregnant and they subsequently got married.  Ms Mogford could not have moved in with Patricia because Ms Mogford runs her business and the short wave radio from her home.

30.     Ms Mogford said when she and Patricia started living together, they pooled everything including using a joint bank account.  Even though Patricia’s English “isn’t brilliant”, she got on well with Ms Mogford’s friends and children.  They visited her daughter, Kim, in Victoria at Easter 2000 for a week and saw her son, Craig, and his family and her other daughter, Trish.

31.     When Patricia had to leave Australia, Ms Mogford said she felt so bad and could not believe that her country could do this.  The last three years have been the worst of her life.  She became withdrawn and would go and play the pokies to be by herself but with people around her.  The separation has effected her emotionally, physically and financially..  It has cost her at least $60,000 over three years: approximately $19,200 to support Patricia in Colombia for 16 months plus $1,500 for her air fare; $23,000 for Ms Mogford’s trips to Colombia and Spain; $16,000 in respect of loss of earnings; and $3,000 for telephone calls.  Patricia is largely self-supporting now in Spain.  If necessary Ms Mogford pays money into their joint St George account on which Patricia can draw overseas or, alternatively, sends her money orders.

32.     Ms Mogford said Patricia’s first application for an Interdependent Partner visa lodged on 25 January 2001 was lodged on the advice of Patti Rossi, an officer at the Australian Embassy in Santiago who said the application should be lodged as soon as possible without waiting for the period of 12 months from the time they commenced living together.  When Patricia’s second visa application was refused on 23 August 2002, Mrs Mogford had no idea that it might be refused on character grounds.

33.     Ms Mogford said she and Patricia speak on the phone at least twice a week.  Ms Mogford went to Colombia to spend Christmas 2000 with Patricia.  She arrived in Colombia on 20 December 2000 and left on 30 January 2001, staying during that time with Patricia’s sister in Pereira.  Ms Mogford said they did not do a lot while she was there, spending most of the time in the house because Patricia was too frightened to go out.  They went out a couple of times with Patricia’s family to whom Ms Mogford was introduced as Patricia’s “boss”.

34.     One of the occasions involved going on a picnic by a river and involved hiring four wheel drive vehicles.  In the course of hiring the vehicles, a man pointed at Ms Mogford threateningly shouting “Gringo”, presumably thinking her American by her blond hair and blue eyes.  Ms Mogford said she was terrified.  However, she acknowledged this treatment was not related to her sexuality.  She could not live in Colombia because she would always be a target.  Ms Mogford said even though she now speaks and understands a little Spanish, she could never work in Colombia and has never inquired whether she could live there. 

35.     Ms Mogford said she spent more than three months in Spain with Patricia from 30 April 2002 to 15 August 2002, using her British passport to enter Spain.  Even though she told the immigration officer at the Australian Embassy in Madrid at the interview that she would move to Spain if Patricia’s application was refused, on reflection, she has decided that she could never do so because of her family ties, her business and because she loves Australia.  It would be devastating for her family if Ms Mogford left Australia.  Spain can also be dangerous.  She was robbed and her camera stolen.  Also, she does not speak enough Spanish to be able to get a job.  Even Patricia had difficulty finding work.  She does not want to leave her business in Sydney and is concerned about what would happen to her employee.  If Patricia’s application is unsuccessful, she does not know what she will do.  However, in her statement, Ms Mogford said “If this appeal fails I am afraid the relationship is finished”.

36.     Ms Mogford said Patricia is of good character and would be an asset to the Australian community.  She did not break the law to further her own objectives – it is not in her character to do so.  She would not deliberately supply false documents or make false statements.  When permitted to work in Australia, she worked hard and paid her taxes.  It is her nature to try and help people.  Ms Mogford acknowledged that she has not had a lot of contact with Patricia’s daughter-in-law and grandson who are in Australia.  Patricia’s son is currently in Florida.

Maria Salazar (the Visa Applicant)

37.     Ms Salazar confirmed that she is known as Patricia.  She has a son, Carlos, who is married to an Australian citizen with whom he has a son, Gioni, who was born in Sydney and will be three years old in July.  Carlos is currently working in Miami.  Because he entered Australia with Ms Salazar on her passport in August 1997 – he was 17 at the time – he also had to leave Australia with her in July 2000.  After eight days in Colombia, he went to the United States where he is living in Miami and working for a company called “Sprint”..  His wife and child are still in Australia.  His wife travels to the US every three months to see him.  Ms Salazar said she gets on well with her daughter-in-law.  She spoke to her on the phone yesterday.  They speak regularly and exchange presents.

38.     Ms Salazar said she never lived with her son’s father.  Although he used to travel around all the time, he supported her until he died in 1992.  Ms Salazar said she had to get a copy of his death certificate in order to be able to take her son out of Colombia in 1997 because he was still a minor.  She acknowledged that on entry into Australia, she stated on the Incoming Passenger Card (T4) that she was “widowed”..  She also stated that her main reason for coming to Australia was for a “holiday”, and acknowledged that this was untrue for which she apologised.  If she had stated otherwise, she would not have been allowed to enter.

39.     Ms Salazar said she applied for a visitor visa to come to Australia because she knew it was an humanitarian country.  She had friends who had been to Australia for two months who told her she would be able to apply for refugee status there.  She believed herself to be a refugee and dreamed of going to Australia which she loves as a country.  Ms Salazar said before coming to Australia she sold her house and car and all the stock of her business but not the business itself.  She left the business in the hands of a friend who later closed it down.

40.     Ms Salazar said she had always kept secret her being a lesbian and had been frightened of what would happen if it was discovered.  After a while, friends and others started asking questions about why she was not going out with men and she began to be harassed socially as the secret leaked out.  Ms Salazar said she was threatened by an organisation called the “Black Hand” who are involved in social cleansing in Colombia.  Any lesbian or homosexual or transvestite is liable to be attacked and killed by the Black Hand and are treated as scum like drug addicts and petty thieves.

41.     Ms Salazar said in November 1996 two men on a motorbike fired into her shop and threatened her and tried to kill her.  They wrote on the door of the shop that she must disappear and leave Colombia.  Clients did not return to her shop – an auto boutique, when they learned she was a lesbian and they made unpleasant remarks about her.  Her car was stolen.  Also from the time her son was about 12 or 13, he was threatened, insulted, verbally harassed and hit by his school mates because his mother was a lesbian.

42.     Ms Salazar was asked in cross-examination why she had not mentioned being shot at by two men on a motorbike and about the Black Hand in her protection visa application statement.  She did not know why she had not done so, although she said that Carmen, the translator of her statement, told her at the time that she could present some information now and further information later.  Mr Allatt noted that the first mention of the Black Hand is in the documents filed in about October 1998.  Ms Salazar said she took these documents to the RRT personally after her solicitors had had the documents for five months and done nothing.  She went to the solicitor’s office, got the file documents back, and submitted them personally.  Ms Salazar said she had asked a friend in Colombia to obtain the documents for her and gave him some money to do so.  She was sure they were originals and would not have provided them to the RRT if she had known they were false.  She would have waited to obtain the true documents and then provided these.  She said she had never seen other such documents from Colombia before - she had never needed such reports before – and had no way of knowing whether they were “original”.

43.     Ms Salazar said she asked a friend to obtain the documents for her when her sister refused to do so.  Her sister was upset that Ms Salazar was applying for refugee status in Australia.  When she asked a friend to obtain the documents for her she did not tell him what the nature of the complaints documented was.  She just gave him the details as to where to go, together with her passport details so that she could be identified.  Ms Salazar said when she originally made a complaint at the police station, she did sign the complaint document.  When the documents arrived from her friend they were signed which was why she thought they were genuine.  The first she knew that they were not genuine was when she was told this by the RRT member.  Maybe her friend falsified the documents.  She asked for forgiveness.

44.     Ms Salazar conceded that she had signed some of the documents on receiving them in Australia but she could not recall which ones.  When she returned to Colombia in July 2000, she did not seek originals because they had not been requested and she thought it better to leave things as they were.

45.     Ms Salazar said many lesbians have been discriminated against in Colombia.  Some have gone to other countries; some have been killed.  Her friend Maria Elena Montez Garcia was murdered in Pereira.  She was a lesbian whom everybody knew was gay.  Ms Salazar was told of this by other friends while she was in Australia.  Even Ms Salazar’s family had difficulty accepting her when they first learned she was a lesbian, although they are more accepting of her now.

46.     Ms Salazar said when she returned to Colombia in July 2000, it was like being in prison because of threats that had been made to her and her fear that she would be killed.  As a result, she hardly ever went out for seven or eight months and then only with her family and never alone.  She was living with her sister, Nellie.  A gay friend helped her to get to Spain, where she is now living in Madrid, and looked after her when she arrived.  She is waiting there for things with Ms Mogford to be resolved.  When Ms Mogford was with her in Spain in 2002, Ms Salazar had prepared the papers to apply to remain permanently in Spain but she did not do so because Ms Mogford told her that she should be able to leave Spain soon for Australia.  As a result of not applying, Ms Salazar is now in Spain illegally.

47.     Ms Salazar said she was never without a valid visa in Australia.  After the RRT decision, she paid a solicitor, Michael Jones, $1,000 to apply for Ministerial intervention on her behalf.  He warned her that her application was likely to be rejected.  After making this application, Ms Salazar was granted a bridging visa for a further three months, until 16 July 2000.  She left Australia on 15 July 2000.

48.     Ms Salazar said she had help in completing the protection visa application.  She provided the answers and someone else completed the form for her which she then signed.  In her first application for an Interdependent Partner visa, Ms Salazar stated a dollar equivalent of assets of $150,000.  She herself never had such an amount but the question (T11 p55) asks for the value of assets of “you (and your spouse)” so she thought this included Ms Mogford.  On her second application, she stated the value of her assets as $10,000 (T14 p178).  This was correct although she no longer has this amount because she has been drawing on it.  In this second application, she stated her usual occupation as “business” because, having run a business in Colombia, she sees herself as a businesswoman and thinks of running a business with Ms Mogford.

49.     Ms Salazar said her answers to questions in the first Interdependent Partner visa application were all true and correct.  At the first interview in Madrid on 25 October 2001, she was never told that her character was of concern.  Similarly, in the second Interdependent Partner visa application, her answers were all true and correct.  She was only told her character was of concern in the letter she received from the Australia Embassy in Paris dated 18 June 2002 and not at the prior interview in Madrid on 15 May 2002.  After receiving the letter from Paris, she went to the Embassy in Madrid to see Carlos who had interviewed her previously and asked him to explain the letter..  Carlos told her he did not know the reason for the letter.

50.     Ms Salazar said she first met Ms Mogford at a bar in the Imperial Hotel on 16 September 1998 and they started going out together.  At that time, Ms Mogford was sad and alone.  She felt attracted to Ms Mogford from when they first met.  Ms Mogford is an enchanting person – “big in feelings”, and Ms Salazar fell madly in love with her.  Soon after they met, Ms Salazar told Ms Mogford what had happened to her in Colombia and about her application to the RRT.  Ms Mogford did not accompany her to the RRT hearing but Ms Salazar told her about it afterwards.  Ms Mogford invited Ms Salazar to move in with her a few days after she learned of the RRT refusal.  Ms Salazar said, despite their separation, their relationship “is alive and kicking”.  She loves Ms Mogford and wants them to spend the rest of their lives together.  Ms Mogford phones her up to four times a week and sends her photos.  Ms Salazar sends her letters and presents.

51.     Ms Salazar said she and Ms Mogford have a joint bank account which she is able to access overseas.  Ms Mogford supported her while she was in Colombia.  Now that Ms Salazar is in Spain and is doing casual work minding elderly people,  she can mostly support herself.  However, sometimes she needs money and Ms Mogford and her son help support her.

52.     When Ms Mogford visited her in Colombia, they stayed at her sister’s place and Ms Salazar introduced Ms Mogford as her “boss” rather than her partner out of respect for her family.  They only ever went out with Ms Salazar’s family and never alone.  Ms Salazar was really scared.  They could not live in an open relationship in Colombia because of the harassment and persecution of lesbians.  Also, on one occasion, Ms Mogford was harassed when a man told her “get out of here Gringo”.

53.     Ms Salazar said when she had permission to work in Australia, she worked as a cleaner and paid her tax.  If she is allowed to return to Australia, she will try to get a contract to work in a hospital and then, later, open a small business with Ms Mogford.  Ms Salazar said she is an honest and hard working person and would never break the law.  At the moment, she and Ms Mogford are both psychologically unwell because of their separation.

Submissions

Applicant

54.     Mr Jeans, for the Applicant, conceded that the Visa Applicant made a false or misleading statement on her Incoming Passenger Card when she stated that the main reason for her coming to Australia was for a “holiday”..  The true reason was to enable her to apply for a protection visa as a result of the persecution she suffered as a lesbian in Colombia.  Mr Jeans said there is no evidence that Ms Salazar made a false statement in her application for a visitor visa in view of the fact that the application is not in evidence.  He submitted that Ms Salazar’s statement on the Passenger Card that she was “widowed” was correct.

55.     Mr Jeans submitted that Ms Salazar did not make any false or misleading statements in relation to her protection visa application.  The departmental delegate accepted that she had been persecuted in Colombia.  The US Department of State Country 2002 Report for Colombia, dated 31 March 2003 (A5), records paramilitary “social cleansing” killings of homosexuals.  The International Lesbian and Gay Association information on Colombia detailing human rights violations in 1996, details “social cleansing” groups in Colombia including the Barranquilla group “Black Hand” and a death squad of police officers operating in Pereira. 

56.     Mr Jeans submitted that it is not uncommon for applicants to not provide all relevant details at first instance and for women who have been the subject of harassment or abuse to be reluctant to provide details.  He noted that when Ms Salazar first lodged her protection visa application, the Department did not request further information or ask Ms Salazar to attend an interview.  With respect to the documents found by the RRT to be false, Ms Salazar provided these to the RRT personally.  Ms Salazar claims she did not know that the documents were not genuine and there is no evidence to suggest she did.  She apologised if they were not genuine.  Mr Jeans noted that the Respondent had not sought verification of the documents and relied solely on the opinion of the RRT member.  In any event, Ms Salazar maintained her account of persecution in Colombia and was unshaken despite rigorous cross-examination on this.

57.     Mr Jeans submitted that there is no evidence of any false or misleading statements in Ms Salazar’s two Interdependent Partner visa applications.  She has accounted for the different asset figures given and explained her perception of herself as a businesswoman.

58.     Mr Jeans said while the Applicant recognises that pursuant to Direction No 21, the Visa Applicant’s conduct in respect of her entry into Australia should be regarded as serious, she has no history of misconduct.  Indeed, the Applicant has provided evidence of Ms Salazar’s good character from a number of witnesses.  Regard should be had to the Applicant’s and Visa Applicant’s situation: that of two women in their fifties who love one another and have been in an interdependent relationship since October 1998.  There is evidence of the psychological effect of their separation on the Applicant who could not relocate to Colombia: she does not speak Spanish, she would be discriminated against because of her sexual orientation and, in any event, Colombia is the subject of Department of Foreign Affairs and Trade and US Department of State travel warnings (A6, A10 and A7) relating to violence and kidnappings.

59.     The Applicant also does not want to relocate to Spain and, in any event, there is no evidence as to whether the Visa Applicant would be permitted to remain there.  The Applicant has close family ties with her children, grandchildren, nephew and niece and her children.  One of her daughters lives with her and another is moving to Sydney shortly.

60. Mr Jeans submitted that, on balance, the factors in favour of the grant of the visa outweigh those against and, if the Tribunal finds that the Visa Applicant does not pass the character test, it should, therefore, exercise the s 501(1) discretion in favour of the Visa Applicant.

Respondent

61.     Mr Allatt, for the Respondent submitted that the Tribunal could infer that the Visa Applicant made a false and misleading statement in her application for a visitor visa since she admitted that the main purpose of her coming to Australia was to lodge an application for a protection visa and not, as stated on her Incoming Passenger Card, in a further false and misleading statement, for a “holiday” with an intended stay of 21 days.

62.     Mr Allatt said the Respondent also contends that the Visa Applicant made false and misleading statements in relation to her protection visa application.  The RRT rejected Ms Salazar’s later claims as embellishments and found that a number of documents submitted by Ms Salazar in relation to the incidents to which she referred were false.  Mr Allatt questioned why incidents of such a serious nature as those described by Ms Salazar were not mentioned in her original protection visa application and contended that this significantly undermines her credibility.

63. The Respondent “does not deny that homosexuals and lesbians face difficulties in Colombia” but relies on the RRT’s finding that the later incidents described by Ms Salazar did not occur. Moreover, there were discrepancies between Ms Salazar’s evidence and some of Ms Salazar’s son’s evidence to the RRT (for example, T9 p113) and unanswered questions as to why Ms Salazar should have signed some of the documents on receiving them in Australia. Mr Allatt submitted that as a result of such misconduct, the Tribunal should find that Ms Salazar does not pass the character test pursuant to s 501(6)(c)(ii).

64.     With regard to Direction No 21, Mr Allatt submitted that Ms Salazar’s conduct was serious involving both false and misleading statements and bogus documents, and demonstrates a willingness to breach the law in order to further her own objectives.  Thus, there is a risk she might do so again.  By affirming the refusal of a visa, the Tribunal would be deterring others contemplating such misconduct.  Moreover, the Australian community would not expect that, in such a situation, a visa would be granted.

65.     With regard to other considerations, Mr Allatt said the Respondent accepts that the relationship between the Applicant and Visa Applicant is genuine and acknowledges that hardship would be caused to the Applicant if the visa is refused.  Nevertheless, such hardship is outweighed by the applicable primary considerations and the decision under review should therefore be affirmed.

Application of the Law and Findings

66. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Salazar 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 …

In ReMsumba 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).

67. 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 Salazar, 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.

68.     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), and 1.9(b), 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)).

69.     Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings.   The Visa Applicant, Ms Salazar acknowledged that her main reason for coming to Australia was to lodge a protection visa application.  She agreed that her statement on the Incoming Passenger Car that her main reason for coming to Australia was for a holiday was false.  In the Tribunal’s view, it is also reasonable to infer that when she lodged an application for a visitor visa to come to Australia she would have stated that her main reason for doing so was a holiday and so made a false statement.

70.     The Tribunal accepts Ms Salazar’s evidence, which is supported by that of Maria Glaives and the country information concerning Colombia tendered by the Applicant, that as a lesbian she was liable to persecution in Colombia.  The Tribunal also accepts that a “social cleansing” group called the “Black Hand” were involved in intimidation and violence towards minority groups such as gays and lesbians.  The Tribunal notes that Ms Salazar made no mention of the specific incidents involving the alleged shooting and threats made to her by two men on a motor bike in her original protection visa application.  She was not at that time represented and completed the application with the assistance of an interpreter, to whom she gave answers to the questions asked in the application form.  In these circumstances, in the Tribunal’s view it is not surprising that her supporting statement may not have included all incidents of alleged discrimination or persecution.  It is, however, surprising that she did not include reference to the most serious alleged incidents.

71.     Ms Salazar was not asked for further details of the alleged persecution at the time the form was lodged nor was she called for interview.   She was represented for at least part of the period pre-hearing and realised she would need further documentation to support her claim..  When her sister in Colombia declined to help, she approached a friend to obtain the documents for her.  She gave these to her solicitor but retrieved her file and documents when the solicitor had failed to progress the matter.  She therefore lodged documents she had obtained from Colombia with the RRT herself.

72.     The RRT did not accept that the documents were genuine.  In reaching this conclusion, the Tribunal member relied on her analysis of the evidence and examination of the documents.  No independent examination or verification was undertaken.  Ms Salazar’s evidence in the current matter is that if the documents were not genuine, she was not aware of this and, had she known, she would not have provided them to the RRT.

73.     The Tribunal found Ms Salazar to be a credible witness.  She was not shaken in the details of her account during cross-examination and her presentation impressed the Tribunal as full and frank.  The Tribunal is not satisfied that she was aware that the documents were forged and the Tribunal makes no finding as to whether they were forged on the basis of the evidence before it.  The Tribunal finds it hard to believe that the detail contained in the incident reports was made up by Ms Salazar and set out in forged documents in Colombia.

74.     The Tribunal finds that there were no false or misleading statements in Ms Salazar’s two Interdependent Partner visa applications.  The Tribunal accepts her explanation as to her answers with regard to her assets in the first application and that she considered her occupation to be as a businesswoman.  Moreover, in relation to her Incoming Passenger Card, the Tribunal also accepts that it was reasonable for her to describe herself as “widowed” given the death of the father of her son who was accompanying her to Australia.

75.     The Tribunal finds that Ms Salazar had a valid visa at all times during her stay in Australia and accepts her evidence that she had permission to work during the period she worked.  She left Australia, as required, before the expiry of her final bridging visa.

76.     The Tribunal heard evidence as to Ms Salazar’s good character from Ms Mogford, Kim Mogford, Laurel Edwards and Maria Galvis.  With the exception of the alleged false statements in relation to her application for a visitor visa and her false statements on her Incoming Passenger Card, the Tribunal is not satisfied there is other evidence of misconduct.

77. In the Tribunal’s opinion, the evidence does not establish that Ms Salazar’s character, in the sense of her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. Indeed, the oral evidence at the hearing as to her character and the Tribunal’s impression of Ms Salazar from her giving her evidence by conference telephone, suggests, on the contrary, that she is of good character. The Tribunal finds that she was motivated by fear of persecution in making false and misleading statements in order to gain entry to Australia, that she sought to regularise her situation as soon as she was able, and is appropriately contrite for her misconduct. Moreover, while she was in Australia, she complied with all immigration requirements. Thus, the Tribunal finds, pursuant to s 501(6), that she passes the character test.

78. The Tribunal notes that even if it were to find that Ms Salazar 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 the Australian community nor the expectations of the Australian community require that Ms Salazar be excluded from Australia. The Tribunal finds that the likelihood of repetition is minimal and, while deterrence is always an important consideration in respect of breaches of Australia’s immigration law, in the Tribunal’s view, the Australian community would take a humane view of Ms Salazar’s situation and having regard to the other considerations in this case.

79.     The other considerations are those to which decision-makers are directed by paragraph 2.17 of Direction No 21.  They include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the non-citizen’s business and other ties to the Australian community; genuine marriage to an 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 entering into the relationship; the degree of hardship caused to immediate family members; and the family composition of the non-citizen’s family, both in Australia and overseas.

80.     The Tribunal finds that Ms Salazar and Ms Mogford are in a genuine interdependent relationship and clearly love one another.  Their relationship commenced in October 1998 and they both gave evidence that they wish to live together for the rest of their lives.  Since Ms Salazar departed Australia on 15 July 2000, they have spent about six weeks together in Colombia over Christmas 2000 and over three months in Spain in 2002.  Their separation has obviously caused significant hardship to both of them.  The Tribunal heard evidence from Ms Mogford’s daughter, Kim, on the effect on her mother, which was supported by the evidence of Ms Edwards and Ms Galvis.  Both Ms Mogford and Ms Salazar also gave evidence on how their separation has affected them and how Ms Mogford would be devastated if Ms Salazar is denied a visa.

81.     The Tribunal finds that Ms Mogford is committed to life in Australia, a country she loves.  She is close to her family who are all in Australia and she has established a courier business which she runs from her home and which is her source of income.  She speaks and understands very little Spanish and, in the Tribunal’s view, it would not be reasonable to expect her to relocate to either Colombia or Spain if she were able to do so, which has not been established.  To live in Colombia would obviously pose significant risks in terms of the persecution lesbians face there and, more generally, the violence and kidnapping that are rife.

82.     The Tribunal finds that Ms Salazar has a daughter-in-law and grandson who are Australian citizens and currently living in Australia.  Her son is currently in Miama having departed Australia with Ms Salazar on 15 July 2000.  Ms Salazar ran a small business in Colombia for many years and gave evidence that she would like to be involved in a small business venture with Ms Mogford in Australia.  She is currently in Spain, where her immigration status is uncertain, and is genuinely frightened of having to return to Colombia for fear of persecution.  She has casual work in Spain, but also requires some financial assistance which is provided by Ms Mogford and her son.

83.     The Tribunal finds that Ms Mogford was aware of the uncertainties associated with Ms Salazar’s immigration status in Australia from early on in their relationship although she was not aware of character concerns until June 2002.  Her evidence is that she had no idea that this was at issue until Ms Salazar received a letter from the Australian Embassy in Paris dated 18 June 2002.

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

85. In conclusion, the Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Maria Luz Osorio Salazar passes the character test pursuant to s 501(6) of the Act.

I certify that the  85 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  2, 5 and 11 June 2003
Date of Decision  17 June 2003
Solicitor for the Applicant          Mr S Jeans
Solicitor for the Respondent    Mr M Allatt