Montoya and Minister for Immigration, Multicultural and Indigenou S Affairs

[2003] AATA 1350

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1350

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/123

GENERAL ADMINISTRATIVE   DIVISION		)
Re		MRS ISABEL C MONTOYA

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date23 December 2003

PlaceMelbourne

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds. 

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Immigration – spouse visa – character test – illegal overstay of visa – working unlawfully – exercise of discretion – decision under review set aside.

Migration Act 1958 – ss 234, 235,501

Re Czasak and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 420

Re Naufahu Fauonuku and Minister for Immigration and Multicultural Affairs [2001] AATA 242

Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568

REASONS FOR DECISION

23 December 2003 Mr S P Estcourt QC., (Deputy President)          

1.      This is an appeal from a decision of the Minister to refuse to the visa applicant, Carlos Ariel Echeverri Espinosa a Partner (Provisional) Class UF) Visa Subclass 309 to allow him to join his wife, the review applicant Isabelle Cristina Montoya to live together in Australia. 

2. The decision of the respondent, made on 13 December 2002, was that the visa applicant had failed to satisfy him that he passed the “character test” posed by s501 of the Migration Act 1958 (“the Act”) and the respondent declined to exercise his discretion to nevertheless grant the visa in the face of such failure.

3.      The facts in this case are not in controversy, rather it is the complexion which is to be placed upon them which is determinative of the outcome. 

4.      The visa applicant, a citizen of Colombia, was born on 14 January 1975 and arrived in Australia on 12 September 1997 as the holder of a Subclass 676 Short Stay Visitor Visa, which was issued on 1 July 1997 and authorised the visa applicant to stay in Australia until 12 December 1997. 

5.      On 24 October 1997, the visa applicant applied for a protection visa, which was refused on 4 November 1997.  Subsequently, on 25 November 1997 he applied to the Refugee Review Tribunal for a review of that decision. 

6.      In a decision dated 30 November 1999, the Refugee Review Tribunal, while accepting that the visa applicant was targeted by guerrillas in the region where he had a farm in Colombia and while accepting that he was so targeted at least in part by reason of his political opinion, it found that he could avoid harm by relocating to some other region on his return to Colombia. It was therefore not satisfied that he had a well‑founded fear of persecution within the meaning of the Refugee Convention.

7.      From the date of his application for a protection visa to 14 January 2000 when his Bridging Visa A (WA/010) expired, the visa applicant remained lawfully in Australia and was permitted to work under the terms of the visa during that period. 

8.      However, the visa applicant’s difficulties  commenced when, on being required to depart Australia after the relevant period following the notification of the decision of the Refugee Review Tribunal, he stayed,  illegally and continued performing work for reward unlawfully. 

9.      The review applicant was born in Colombia on 14 June 1977 and arrived in Australia in 1978.  She became an Australian citizen on 24 March 1986.

10.     The review applicant met the visa applicant in Sydney in October 2000 when she was 24 years old.  They formed a relationship and married some 8 months later on 9 June 2001. 

11.     It is not suggested that the marriage between the review applicant and the visa applicant is anything other than genuine.

12.     The visa applicant ultimately surrendered himself to authorities, was granted a Class E Subclass 050 Bridging Visa on 15 October 2001 and voluntarily departed Australia on 21 October 2001. 

13.     The review applicant, who had known that the visa applicant had remained in Australia and was working after his visa had expired from about a month after they first met, followed her husband to Colombia, having previously lodged a sponsorship for partner migration to Australia. That application was lodged on 15 October 2001.

14.     In the respondent’s statement of facts and contentions, it is submitted at para.18 that the visa applicant’s failure to pass the character test on the basis of his past and present general conduct is comprised of his breaching immigration law in remaining in Australia as an unlawful non‑citizen who performed work in Australia for reward subsequent to the refusal of his application for a protection visa.

15.     In his closing submissions, counsel for the respondent Mr Wood, relied not only on the illegal overstay, but also on the proposition that upon his arrival in Australia, on 12 September 1997, the visa applicant did not intend only a short stay and that his intention to remain longer in Australia was evidenced by his illegal overstay of 22 months.

16.     Mr Wood also drew for this submission on the proposition that, from the evidence given before the Refugee Review Tribunal, it appears that the visa applicant’s problems with guerrillas dated back to 8 May 1997, thus predating his application for his short stay visitor visa and that, by the time he left Colombia, he had experienced further difficulties with the guerrillas culminating in death threats on 22 August 1997 and an ultimatum to leave the country within 24 hours on Friday 9 September 1997. Thus, it is said, there was created in the visa applicant’s mind a clear intention to come to Australia to escape from the guerrillas as opposed to a short stay.  That state of mind, Mr Wood says should have been reported to authorities.

17.     In respect of the illegal overstay and work in Australia, counsel for the applicant, Mr Thapliyal referred me to the decision of Deputy President Handley in Czasak and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 420 where Deputy President Handley said as follows:

“Thus Mr Polack’s proven misconduct is his remaining in Australia unlawfully and working without permission for a period totalling about 2½ years.  The Tribunal recognises that such breaches of Australia’s immigration (sic) should be regarded seriously.  Nevertheless the Tribunal notes the discussion of what is meant by good character in Goldie (supra) and Msumba (supra) which refer the decision maker to the applicant’s ‘enduring moral qualities’..  As the Tribunal said in Re Msumba at para.37, an applicant is not required to met the highest standards of integrity.  The issue is whether the deficiencies in his or her character are such ‘that it is in the public good to refuse the visa.

Mr Polack’s misconduct in breaching Australia’s immigration law was serious.  Nevertheless, on balance the Tribunal is not satisfied that given other evidence as to Mr Pollack’s character, background and situation, his character is so deficient as for it to be for the public good that he should be refused entry …”.

18. It was also pointed out that the illegal overstay and unlawful work are a breach of s235 of the Act and not s234 and as they are not punishable by imprisonment they ought not to be considered “serious” within the meaning of Ministerial Direction No. 21.

19.     As pointed out on behalf of the respondent by Mr Wood however, the decision of Naufahu Fauonuku and Minister for Immigration and Multicultural Affairs [2001] AATA 242 (28 March 2001) notes that the wording of clause 2.6(c) of Ministerial Direction No.21 provides that serious offences are those “including, but not limited to, …” offences such as breaches of s234 of the Act. As Deputy President Block said in that case, offences against s235 of the Act can also be regarded as serious.

20.     I do not accept Mr Wood’s submission that the visa applicant, upon coming to this country using his visa obtained on 1 July 1997 at all times intended other than the short stay. 

21.     It is true that according to the material before the Refugee Review Tribunal, the applicant’s problems with the guerrillas dated back to 8 May 1997.  However, that is a mere historical starting point for his problems and events did not get to the stage where it might be thought the visa applicant decided to flee the country until well after his visa had been granted.

22.     I think that it is setting the bar far too high to suggest that a person in the visa applicant’s position could not travel to Australia using a validly obtained visa, notwithstanding that there may be other reasons why it was prudent or convenient for that person to leave their own country at that time. 

23.     I accept the visa applicant’s uncontradicted evidence that it was not until after he arrived in Australia that he discovered that he was able to apply for permanent residence on the basis of a protection visa.

24.     Notwithstanding that I accept that at the time the visa applicant entered the country he did not intend any breach of Australia’s immigrations laws, it is clear that he knew that his visa had expired after he was informed of the Refugee Review Tribunal’s decision and it is clear that he knew that he had to leave the country at that time.  From that time on, the visa applicant chose to breach this country’s immigrations laws, albeit on the basis that he had a genuine fear of the consequences of his return to Colombia. 

25. The point in my view is, that notwithstanding the visa applicant’s entitlement to apply for a protection visa once in Australia, when that visa was refused and the Refugee Review Tribunal upheld the refusal on the basis that it was satisfied that the visa applicant did not have a well‑founded fear of persecution, it was incumbent upon him to leave Australia, notwithstanding his own views about the matter. Once he failed to do so, he placed himself in a situation of deliberately choosing to break this country’s immigration laws and accordingly cannot be considered to be of good character within the meaning of s501 of the Act.

26.     It follows that the visa applicant has failed to satisfy me that he passes the character test. I turn therefore to a consideration of my discretion to nonetheless authorise the grant of a visa.

27. In this case as I have already observed, the seriousness and nature of the visa applicant’s conduct is mitigated by the fact that offences against s235 of the Act are at the lower end of the scale of seriousness, punishable by a monetary penalty only and not by imprisonment.

28.     Additionally, on the question of the seriousness and nature of the conduct, which goes to the protection of the Australian community, it is relevant to note that notwithstanding the formal finding of the Refugee Review Tribunal that the visa applicant did not have a well-founded fear of persecution within the meaning of the Refugee Convention, his uncontradicted reason for failing to leave Australia was his own personal fears for his safety upon return to Colombia. 

29.     As to the question of whether the visa applicant might repeat his conduct, I think it unlikely, particularly in view of the fact that his present application is for a visa entitling him to reside permanently in Australia.

30. On the question of deterrence, it is plain that the Australian community does not expect that persons who break this country’s immigration laws will be rewarded upon discovery of that fact, with the grant of the visa they should have had. Nonetheless, in my view, the Australian community would expect the Act to be administered humanely and compassionately where appropriate.

31.     On the question of the best interests of any child of the applicant, the Tribunal notes that the applicant is the father of a daughter who remains in Colombia in the primary care of her mother and her situation will be largely unaffected by the outcome of the Tribunal’s decision in any event. 

32.     Under Ministerial Direction No.21 issued for the guidance of decision makers including the Tribunal, “other considerations” apart from the “primary considerations” I have just enumerated may be relevant, and where relevant, may be taken into account, although generally these considerations will be given less individual weight than the primary considerations. 

33.     In this case the review applicant gave unshaken evidence that she “can’t go to Colombia to live”..  She tried for 13 months, but because of the insecurity her husband was facing, the couple moved around a great deal and she was immensely unhappy, eventually returning to Australia. 

34.     In considering the compassionate claims of the review applicant, it is noted that she was conscious of the visa applicant’s immigration status shortly after she met and before she married him.  However, as I have already indicated, there is no suggestion that the marriage is anything other than genuine and was certainly not contrived in order to secure the permanence of the visa applicant’s residence in Australia. 

35.     One does not lightly require an Australian citizen to give up their country and in particular to go and live in a place where the government’s own travel advice is currently that Australian’s are to defer all non‑essential travel. This is said to be because of the ongoing risk of terrorist attacks, guerrilla and paramilitary activity, widespread common crime and drug trafficking and armed clashes involving the Colombian military rebel groups and drug traffickers. 

36.     According to the travel warning, violent crime including bombings, kidnappings and murder, against Colombians and foreigners alike is prevalent.  Kidnapping for ransom is a serious problem it is said, especially in rural areas, but also increasingly in major urban centres and foreigners have been kidnapped and murdered. 

37.     As was observed by the Full Federal Court in Wan and Minister for Immigration and Multicultural Affairs [2001] FCA 568 albeit in the context of assessing the best interests of a child, an important consideration is:

“The fact that the children, as citizens of Australia, would be deprived of a country of their own and their mother’s citizenship, ‘and of its protection and support, socially, culturally and medically, and in the many other ways evoked by but not confined to, the broad concept of lifestyle’ (Vaitaiki, per Birchett J at 614).” (emphasis added)

38.     In my view, on the peculiar facts of this case the usually less significant “other considerations” of genuine marriage to an Australian citizen and the compassionate claims of the Australian partner outweigh the “primary considerations” enumerated above. 

39.     It follows that the Tribunal in this case exercises its residual discretion in favour of the visa applicant and the decision of the Tribunal is that the decision under review be set aside and that the matter be remitted to the respondent with a direction that the visa application not be refused on character grounds.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  8 December 2003
Date of Decision  23 December 2003
Counsel for the Applicant         Mr Ajai Thapliyal
Solicitor for the Applicant          Challenge Legal
Counsel for the Respondent     Mr Derek Wood
Solicitor for the Respondent     Blake, Dawson and Waldron