Munoz and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 676
•14 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 676
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/889
GENERAL ADMINISTRATIVE DIVISION ) Re ROSA MUNOZ Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis AM Q.C., Deputy President Date14 July 2005
PlaceSydney
Decision The decision under review is set aside. The application is remitted to the Respondent with a direction that the visa sought not be refused on the character ground.
..............................................
R N J Purvis AM Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – spouse (provisional) subclass 309 visa – remained in Australia unlawfully – working without permission – protection visa application made devoid of factual allegations – protection visa application refused – reliance on advice of migration agent – reliance justified – no intention to abuse process – not a person who is not of good character – exercise of discretion not necessary, but discussed – little risk of recidivism – measurable hardship to partner’s children – great mental and physical hardship would be suffered by partner – decision set aside and remitted with a direction that the visa sought not be refused on the character ground
Migration Act 1958 ss. 234, 499, 501
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Re Grigorian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648
Re Issa and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 421
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
REASONS FOR DECISION
14 July 2005 The Hon R N J Purvis AM Q.C., Deputy President the application
1. Mrs Rosa Muñoz an Australian citizen of Chilean descent (“the Applicant”), then a divorcee, married Mr Guzman Castro (Mr Guzman) in Australia on 12 April 2003. Mr Guzman was in due course found to be illegally in this country and after obtaining a bridging visa left and returned to his native Chile on 29 May 2003.
2. An application was made by the Applicant to have her husband granted a provisional spouse (class 309) visa. This application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 16 June 2004. The present application is an appeal from the latter decision.
3. In the Respondent’s reasons for decision it was amongst other matters said:
“…
27. In any case Mr Guzman Castro has provided false and misleading information to the department in his attempt to gain a visa for Australia. As an adult he signed the various application forms he made for the various visas. He entered Australia with permission to stay for 3 months only. He applied for protection and did not depart when this protection visa application was finally determined. It is also clear that he worked in Australia outside his given permission. Even though voluntary work he sustained himself through this voluntary work from 26 November 1998 to 25 May 2003 during which he did not have permission to work.
28. I am therefore satisfied that he has made a false declaration on more than one occasion and that information that has been provided has been false and misleading on more than one occasion.
29. Mr Guzman Castro has stated that when he was in Australia he had followed the instructions of his authorised representative and that representative is no longer practising having had her registration cancelled. However, this still doesn’t explain why he remained in Australia even after the ministerial Intervention had not succeeded.
…
39. Mr Guzman Castro has claimed that he is a victim of bad advice from a migration agent. I am willing to accept that the agent that he had used may have provided him with bad advice, however, he applied for Ministerial Intervention but once the application was decided and finalised by the RRT and the Ministerial Intervention request was not considered he remained in Australia for a period of almost 4 years.
…
42. Mr Guzman Castro attitude both at interview and his response to the Notice of Intention to Refuse, suggests that he accepts little responsibility for his actions.
…
46. Whilst the option of applying for a protection visa is open to everyone, there exists consistent and flagrant abuse of the process and this impacts on those with legitimate claims for protection. It also increases the chances of others endangering their lives and that of their family, in the faint hope that they will be able to travel to Australia illegally, find employment and eventually settle there.
47. Given the circumstances of Mr Guzman Castro’s case as he remained in Australia for a period of more than four years after the final determination of his application and then returned to Chile, the same country he has claimed his fear and persecution from would clearly send a message that such behaviour is condoned.
…”
I refer to the above statements contained in the Respondent’s decision for the reason that I have come to a somewhat different conclusion in relation to a number of these matters.
4. The issues for determination in this application are:
· whether Mr Guzman satisfies the character prerequisites of section 501 of the Migration Act 1958 (“the Act”);
· if the character prerequisites are not satisfied whether the discretion available to the decision-maker should be exercised in his favour.
the hearing
5. At the hearing of this application the Applicant appeared with the aid of a Spanish interpreter on her own behalf. The Respondent was represented by Mr John Bird, solicitor of Phillips Fox Lawyers.
6. The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T19. Written material tendered by the parties was also admitted and marked accordingly:
Exhibit No
Description
Date
A
Documents described in accompanying index under cover letter from TJM Immigration Services
6 December 2004
B
Letter from TJM Immigration Services to Mr J Bird together with bundle of documents
14 January 2005
1
Copy of movement enquiry – visa display referrable to Mr Guzman Castro
22 June 2005
The Applicant, her husband Mr Guzman Castro, and the Applicant’s two sons gave evidence upon which they were each cross-examined.
legislation and minister’s direction
7. The provisions of the Act here relevant are:
“501 Refusal or cancellation of visa on character grounds
(1) 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.
…
(6) For the purposes of this section a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i)…
(ii) the person’s past and present general conduct;
…
the person is not of good character; or
…
499 Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).”
8. The words “good character” as used in section 501 of the Act:
“should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion”.
(See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431)
9. It is not necessary for there to be a continuance of the instance of general conduct. It is sufficient if instances of general conduct be displayed but once or twice, thereby laying the “character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).
10. The Ministerial Direction 21 (“the Direction”) sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test. One factor to be taken into account, as here relevant, is whether the Visa Applicant, Mr Guzman, has shown contempt or disregard for the law including Immigration Law (paragraph 1.9 (a)). Thus Paragraph 1.9 (b) requires consideration to be given to:
“Whether the non-citizen 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 or misleading statement.”
11. If the Tribunal is not satisfied that the Visa Applicant passes the character test, the issue for determination, as already indicated above, is whether the decision of the Minister’s delegate be affirmed or set aside by exercise of the residual discretion under section 501 (1) of the Act. In making this determination the Tribunal is to have regard to the abovementioned Direction and as here relevant to the following provision:
“PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test,
decision-makers must have regard to the following considerations when
exercising the discretion to decide whether or not the non-citizen
should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of
important factors in reaching a decision whether or not to refuse or
cancel a visa. In making such a decision, a decision-maker should
have regard to three primary considerations and a number of other
considerations. The primary considerations are set out at paragraphs
2.3 - 2.16 and other considerations are set out at paragraphs 2.17 -
2.24. Decision-makers must have due regard to the importance placed
by the Government on the three primary considerations, but should also
adopt a balancing process which takes into account all relevant
considerations.”
12. The three primary considerations that must be taken into account by decision-makers are: the protection of the Australian community, the expectations of the Australian community and in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
13. With reference to the protection of the Australian community, the Direction provides that the factors relevant to an assessment of the level of risk to the community of the entering or continued stay of a non-citizen include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated, including any risk of recidivism, and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as much as does the character issue, specifically refers to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.
14. The Direction in paragraph 2.12 stipulates that the Australian community expects non-citizens to obey Australian laws while in Australia. A visa refusal may be appropriate simply because the nature of the character concerned is such that the community would expect that the person would not be granted a visa.
15. The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Re Grigorian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648). It is conceivable that documents can be false and information provided which is false without an applicant being aware of the inaccuracy, lack of correctness or falsity. It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information and as to whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage. As was stated in Irving (supra), the moral qualities of a person are the factors to which attention is to be given.
chronology of relevant events
16. From the evidence tendered before the Tribunal the following situation emerges:
1955, 8 May birth of the Applicant in Chile
1961, 19 January birth of Mr Guzman in Chile
1978, 27 October birth of the Applicant’s son Oscar Andre Gonzales
1985, 4 March birth of the Applicant’s son Felipe Tarbes
1987, 4 September Applicant and her then family arrive in Australia
1997, 23 January Mr Guzman arrives in Australia on a three months visitor visa
22 AprilMr Guzman lodges a protection visa application
24 Aprilprotection visa application refused
26 May appeal to Refugee Review Tribunal lodged
1998, 24 October Refugee Review Tribunal affirms refusal decision
12 November request for ministerial intervention
25 November Mr Guzman’s bridging visa expires and he becomes an unlawful non-citizen
1999, 20 August ministerial refusal to intervene
2 November bridging visa granted
2001, 6 October Mr Guzman first meets the Applicant
2002,March Mr Guzman and the Applicant commence de facto relationship
20 December Mr Guzman joins class action
2003, 12 April Mr Guzman and the Applicant marry
29 MayMr Guzman departs Australia
23 September application for spouse visa lodged
2004, 29 May Applicant involved in motor vehicle accident
16 Junevisa application refused
the factual situation and findings of fact
- as to the Applicant
17. The Applicant first arrived in Australia from Chile with her then husband and two children on 4 September 1987. She was born in Chile and had worked in that country, apart from looking after her family, as a secretary. After living in Australia with her husband for some years she was divorced from him on 1 March 1999. Thereafter she worked as a factory machine operator and a cleaner as well as caring for her two sons.
18. The Applicant met Mr Guzman in October 2001. According to her, Mr Guzman made mention of his migration status very soon after the commencement of their relationship, she being told that he had consulted a migration agent and had applied for a protection visa (refugee visa) on account of his family’s political problems. In due course she was told of his seeing a solicitor after his migration agent was de-registered and of his being advised to join a class action which he did. It was her impression that her husband “was always presenting applications in order to remain in Australia”. On his withdrawal from the class action Mr Guzman, the Applicant, and her elder son sought legal advice and advice from the Department of Immigration. He obtained a bridging visa and departed Australia shortly after. A year after Mr Guzman had left Australia the Applicant was involved in a motor vehicle accident. She suffered injury and has been left with disabilities. She has maintained near day to day telephone contact with her husband.
19. At the present time the Applicant is unemployed but at the request of Centrelink is attending English language classes and anticipates applying for employment possibly as a receptionist in about one year’s time. She has no intention of returning to Chile even if the subject visa is not granted and regards Australia as the permanent home of herself and her sons.
20. The Applicant maintains that the influence of Mr Guzman on her sons as well as herself was very positive. They had been without a father figure in their household for some time and looked upon Mr Guzman as a worthy substitute. The two sons endorsed this situation. As Felipe put it “he was the only one who really cared”. His absence has caused the Applicant “stress and trauma”.
- as to mr guzman
21. As has been already mentioned, Mr Guzman arrived in Australia on a three months visitor visa. A younger brother, his wife and their children were then living in Australia as permanent residents. A cousin, once a refugee, was also resident. Mr Guzman did not leave Australia until nearly six years after his arrival. For much of that time he was an unlawful non-citizen.
22. Shortly prior to the date on which his visitor visa expired and following a discussion with his brother he was introduced to a migration agent who advised him to apply for a protection visa. There is no issue that he wanted to remain in Australia because of the impression he had gained of the country but he says he was also apprehensive of the situation in Chile. The cousin was already in Australia, having been granted refugee status. The protection visa application itself was devoid of factual allegations and was speedily refused. On the advice of the migration agent an appeal was lodged with the Refugee Review Tribunal and a hearing held. The Refugee Review Tribunal refused to grant the appeal and was scathing in its rejection of much of Mr Guzman’s evidence. Mr Guzman maintains to this day that his evidence was truthful. He had the migration agent in attendance at the hearing and it is apparent from the reasons for decision that the agent frequently intervened and was seen to be prompting Mr Guzman. Mr Guzman is not fluent in English. He says the hearing continued until 9 pm.
23. This Tribunal is to take into consideration the findings of the Refugee Review Tribunal and give them such weight as it considers appropriate. No evidence was called at the hearing to rebut Mr Guzman contentions. He says that he trusted the agent to take the steps that were considered necessary to advance his appeal. “I left”, he said, “everything in the hands of the migration agent; she said let me look into it. We can appeal”.
24. The particular agent was in due course deregistered by the Migration Agents Registration Authority. Mr Guzman sought a solicitor’s advice and was, following such advice, joined as a party in a class action. He says that he did not until shortly before he left Australia “regard myself as being in Australia illegally. I always had protection of a visa E and could have been picked up at my brother’s place".
25. An issue in this application is the character of Mr Guzman. The Respondent says that the protection visa application was unfounded and that his participation in the whole procedure reflects adversely upon his character. In effect it is maintained that Mr Guzman sought to use the system wrongly to meet his own ends.
26. As has been said on a number of occasions in decisions of this Tribunal, a person seeking to obtain the benefit of the migration legislation should assume responsibility for the conduct of a migration agent where the latter acts improperly or in breach of the law. It has also been said that the extent of the responsibility may well depend upon the guilt or otherwise of the Applicant’s intent and the extent of his or her awareness of what is taking place. I am satisfied in the present instance that Mr Guzman was well aware of the steps being taken by the agent and that they were being so taken in order to prolong his stay in Australia. I am satisfied that he was not aware however, that any of the procedure put in place was improper. As to the reasons for the decision of the Refugee Review Tribunal, they are just that. The transcript of the hearing was not before this Tribunal and evidence given by Mr Guzman was not put at issue with other material. Nevertheless it is evidence before me, the observations and findings of the member of the Refugee Review Tribunal are to be given due consideration.
27. A telling piece of evidence was given by Mr Guzman when in cross-examination at the hearing before this Tribunal, he was asked about his telling the Applicant of his migration status. He said he told her “about the situation” and further said that “I was at ease with the situation. I was told by the agent we were waiting for the case to be heard. I was waiting for an answer from immigration. I was told to wait.” This hardly reflects a guilty state of mind.
28. It was only shortly after the marriage that Mr Guzman and his wife, the Applicant, were told that “our case was no longer good” and that he should abandon it. Up until then, he says, he believed the Visa E “protected me”. He apologises for any wrong that he did.
29. The Respondent also maintains that Mr Guzman worked in Australia at times when he did not have permission to do so. For some periods of his residency he was allowed to work. There is no issue that he did casual work and earned up to $150 in some weeks. He had a tax file number. He did not pay any tax. His work, he said, was sporadic. His brother helped him out. Both the Applicant and Mr Guzman were aware of the limitations his visas placed on his ability to work. Each of them said that he never had a continuous job. I do not consider that the evidence as to his working is such as to reflect adversely upon his character.
character
30. On the basis of the evidence before the Tribunal I am not satisfied that the past and present general conduct of Mr Guzman enables me to find that his enduring moral qualities are such as to render him a person not of good character. He was unwise. He was led along by the now de-registered migration agent. A solicitor advised him to join a class action. He did work, but was not in constant employment nor did he work to such an extent as would attract income tax. He overstayed his visa but believed that he “was still protected”.
31. Mr Guzman did act in breach of the Migration Act. However, in the circumstances above outlined I do not consider that his conduct was of such gravity as to enable the Tribunal to make an adverse finding as to his character.
32. I have also had regard to the character evidence (Exhibit B). The witnesses are various. They speak of his “great integrity” and his ”devotion” to the welfare of his wife and her children.
children
33. Mr Guzman has three children living in Chile. The youngest two, aged 16 and 13 years, live with their mother and have not been seen by their father since 1997. The father pays monthly child support, which will be continued if he should live in Australia. The eldest of his three children is now 21 years of age, a daughter, and is presently living with her paternal grandparents. Mr Guzman is also living in this home. She is an adult and studying computer science. She is aware of this application and of her father’s wish to be with his wife. She maintains no objection and will continue to live in her grandparents home should her father leave.
health of the Applicant
34. I have mentioned earlier in these reasons for decision the accident experienced by the Applicant in May 2004. As a consequence she suffered neck pain, a whiplash disability, haematoma and an injury to her arm.
35. Further, as a result of Mr Guzman’s absence, according to a psychologist at the Fairfield Health Service:
“At the time of the assessment Ms Muñoz presented with the following psychological symptoms: disrupted sleep pattern, severe insomnia; concentration problems, suicidal thoughts, high anxiety and inability to relax, frequent irritability, intense feelings of guilt and generalised fears, hyperventilation symptoms and panic attacks. Ms Muñoz also presented with a number of somatic complaints such as severe headaches, aches in several areas of her body and traumatic memories after a motor vehicle accident that she suffered on 29-05-2004.
…
Should Mr Victor Guzman not be allowed to come back to Australia, her ability to cope with her present symptomatology will be severely impaired, as will her chances of successful recovery from her illness.
…
The uncertainty she experiences to her husband residency status and their future in Australia is a major source of her current stress and affects her recovery…
…
If Mr Victor Guzman application for residency was to be unsuccessful, it will have a negative impact on Ms Muñoz, her children and her capacity to cope with her current situation which is unstable as it is.
…”
(Exhibit A)
discretion
36. Even be it I am satisfied that Mr Guzman is a person who is not one who is not of good character, in light of the submissions as to the discretionary considerations, I should make some observations in relation to them.
37. I am satisfied that the wrongful conduct of Mr Guzman was serious but not “very serious”. True he may have breached provisions of the Migration Act. True he cannot be excused by reason merely of his conforming to advice given by a now deregistered migration agent and a solicitor. But I am not satisfied as to his guilty intent. I am satisfied that he believed, wrongly may be, that he was entitled to act as he did. I am not satisfied that he used “the migration system to serve unwarranted ends” (see Re Issa and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 421 at para 56). He has not sought to blame others. He has accepted responsibility for trusting the agent.
38. I do not accept that Mr Guzman is likely to again act as he has in the past. He realizes the errors he committed. He is highly regarded by his wife and stepsons and would not want to lose their trust. The circumstances of his engaging in the conduct above detailed are peculiar to his own situation. He accepted his brother’s advice and that of the agent. He believed that he was able to have confidence in the procedure that had been put in place. I am not satisfied in this matter that Mr Guzman sought to obtain a migration advantage by “falsity or deception” (see Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 at para 47).
39. Nor do I accept that the Australian community if fully informed of the relevant facts would consider that a visa should be withheld.
40. There are not any children that attract the primary consideration factor. But there is measurable hardship that would be experienced by the two sons of the Applicant if the visa not be granted. The daughter in Chile is not adversely affected by a decision either way.
41. I am satisfied that the Applicant would suffer great hardship, physical and mental, if a visa is not granted. This is such as to constitute a significant consideration. She did, of course, know of his migration status before the marriage. However, like him she believed that the process then under way was such as to permit him to remain at least until it was determined.
42. There is evidence before the Tribunal that work is available for Mr Guzman as a fitter and turner if he should be allowed to enter Australia.
decision
43. I am satisfied that Mr Guzman does not attract the negative description referred to in section 501 of the Act. I am further satisfied that even had this been so, which it is not, the available discretion would have been exercised in his favour.
44. For the above reasons the decision under review is set aside. The application is remitted to the Respondent with a direction that the visa sought not be refused on the character ground.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM Q.C., Deputy President
Signed: A. Garcia .....................................................................................
Associate
Date/s of Hearing 23 June 2005
Date of Decision 14 July 2005
Representative of the Applicant self-represented
Solicitor for the Respondent Mr J Bird
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