Nightingale-Zverev and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 122

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 122

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2002/1089

GENERAL ADMINISTRATIVE DIVISION		)
Re		NATALIA NIGHTINGALE-ZVEREV

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal  Deputy President Don Muller

Date10 February 2004

Place Brisbane

Decision  The Tribunal affirms the decision under review to refuse the grant of a subclass 309 spouse visa to Evgueni Leonidovich Zverev.

...............SIGNED...............................

D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS

Migration – refusal of spouse visa – past and present conduct – provided false and misleading information – fails the character test – scheme to outwit policy – discretion not exercised in favour of applicant - decision affirmed

Migration Act 1958 s 499 ss501 (1), (6)(c) (ii)

REASONS FOR DECISION

1.      This is an application for review by Natalia Nightingale-Zverev, the Review Applicant, of a decision made on 11 November 2002 by a delegate of the Minister for Immigration Multicultural an Indigenous Affairs, the Respondent, to refuse to grant a Subclass 309 Spouse Visa to Evgueni Leonidovich Zverev, the Visa Applicant.

2.      Natalia is an Australian citizen.  She was born in Russia.  She first entered Australia on 26 June 1998.  She married Evgueni in Moscow on 26 January 2002.

3.      On 30 January 2002, Evgueni lodged a spouse visa application in Moscow on the basis of his relationship with Natalia.  On 11 November 2002, a delegate of the Respondent decided to refuse the grant of the visa to Evgueni on the ground that he did not pass the “character test” within the meaning of that term in section 501 of the Migration Act 1958..  In particular, it was decided that he gave false and misleading information to the Department in relation to two visitor visa applications he made in 2001.  On both applications he declared that he did not have any friends, relatives or contacts in Australia, and that it was his intention to visit Australia for one week as a tourist.  It is the Respondent’s contention that he knew Natalia at the time and that he intended to visit her in Australia.

4.      At the hearing the Applicant was self-represented and the Respondent was represented by Mr Hardman, solicitor. Natalia gave oral evidence, and Evgueni gave evidence by telephone from Russia.

5.      The Tribunal had before it the following documents :

(a)The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 , exhibit 1;

(b)Statement of Evgueni Zverev dated 23 April 2003, exhibit 2;

(c)Supplementary T documents, exhibit 3 ;

(d)Statement of Natalia Nightingale-Zverev dated 1 April 2003; exhibit 4;

(e)Statement of Barbara Nichol dated 2 April 2003, exhibit 5; and

(f)Bundle of documents supplied by the Applicant, exhibit 6, including information from “5 Season” tourist bureau in Russia, references relating to both Natalia and Evgueni, copies of letters which passed between Natalia and Evgueni, material relating to Evgueni’s occupation, copies of family photographs, wedding bills, wedding cards, wedding invitations, wedding photographs, itinerary and boarding passes for Natalia.

6.      The relevant provisions of the Act are :

“501  Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(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.

Note:   Character test is defined by subsection (6).

Character test

(6)For the purposes of this section, a person does not pass the character test if:

(a)…

(b)…; or

(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

(d)       …

Otherwise, the person passes the character test.”

7.      The following background facts are not in dispute and the Tribunal finds as follows:

(a)Natalia Nightingale-Zverev was born Natalia Truskova in Karabash, Cheljabinsk Region, Russia on 3 April 1971.  She is currently 33 years of age.

(b)Evgueni Zverev was born in Kurgan City, Russia, on 14 July 1966.  He is currently 38 years of age.

(c)On 1 July 1995, Evgueni married Vahramova Larisa Valerevna.

(d)On 10 February 1996 Natalia met Evgueni at a party of one of their mutual friends, Lena.  They began a serious relationship within a month of meeting each other.

(e)Evgueni divorced his wife on 12 April 1996.

(f)Throughout 1996 and the first half of 1997 Natalia and Evgueni discussed the possibility of marrying each other.  They also discussed the possibility of having a child together.  In September 1996, they went on a holiday together to Anapa, for 10 to 12 days.

(g)In about July/August/September 1997, Natalia and Evgueni appeared to break off their relationship.

(h)In August 1997, Natalia started to correspond with an Australian citizen, Allister Nightingale, after being introduced through an “introduction agency”..  They exchanged a few letters and spoke to each other by telephone on about three occasions.

(i)On 21 November 1997, Mr. Nightingale arrived in Moscow where he met Natalia.  They then travelled to her home town where they stayed in the flat of Natalia’s parents.

(j)Mr. Nightingale proposed marriage to Natalia on 26 November 1997.  She accepted and they had an engagement celebration.  They then spent two days in St. Petersburg and three days in Moscow before Mr. Nightingale returned to Australia.

(k)On 2 February 1998, Natalia applied for a prospective marriage visa on the basis of her relationship with Allister Nightingale.  He sponsored the application.

(l)Natalia was granted a prospective marriage (temporary) visa on 9 April 1998.  She arrived in Australia on 26 June 1998.  She and Mr. Nightingale were married in Australia on 15 August 1998.

(m)Evgueni knew in 1998, that Natalia had migrated to Australia.

(n)The marriage between Natalia and Mr. Nightingale did not last long.  They separated in 1999.  She made an application for a Domestic Violence Order against him.  This application did not succeed, but the marriage relationship ended.

(o)Evgueni telephoned Natalia for her birthday on 3 April 2000.  They continued to communicate with each other by telephone and by letter.

(p)Mr. Nightingale initiated divorce proceedings in early 2000.  The matter was heard in the Family Court, Townsville on 7 September 2000.  The marriage was dissolved and the decree nisi became absolute on 8 October 2000.

(q)In the years 2000 and 2001, Natalia and Evgueni discussed the possibility of his visiting Australia and meeting up with her.

(r)On 11 July 2001, Evgueni lodged an application for a Tourist (short stay) sub-class 676 visa.  The application form indicated that Evgueni did not have any relatives, friends or contacts in Australia.

(s)On 18 July 2001, the visitor visa application was refused on the basis that the delegate was not satisfied that Evgueni intended a “genuine” visit to Australia.  He apparently fitted the profile of persons who tended to overstay their visit, or fail to return from Australia to Russia.

(t)Evgueni lodged a second application for a tourist visa on 12 October 2001.  Again the application indicated that Evgueni did not have any relatives, friends or contacts in Australia.

(u)On 25 October 2001, Evgueni’s second visitor visa application was refused. The reasons for the refusal were:

“In view of the applicant’s failure to provide objective evidence of funds, the absence of an history of travel established a propensity to abide by visa conditions and his circumstances in Russia, I am not satisfied that he intends a genuine visit to Australia.  As such, his application is refused.”

(v)At the end of October or the beginning of November 2001, Natalia and Evgueni discussed marriage plans.  They decided to get married in Russia in January 2002.

(w)Natalia bought some decorations for a wedding cake on 19 November 2001.  She bought a wedding dress from Myers, Brisbane, on 27 November 2001.

(x)Natalia travelled to Russia in January 2002.  She arrived in Moscow on 15 January 2002. Evgueni met her at the airport.  They stayed together in Moscow for a few days.

(y)Natalia and Evgueni travelled to Chelny on 17 January.  They had an engagement party on 19 January.  They were married on 26 January 2002.

(z)On 30 January 2002, Evgueni lodged an application in Moscow, for a spouse visa on the basis of his relationship with Natalia.  Natalia was his sponsor, as a permanent resident of Australia.

(aa)On 1 February 2002, Natalia returned to Australia.

(bb)On 20 February 2002, Evgueni attended an interview at the Australian Embassy in Moscow.  In that interview Evgueni revealed that in his two applications for visitor visa in 2001, he had not disclosed his relationship with Natalia. During the course of the interview the following exchange took place:

“QDid you make any arrangements to see each other?  Yes.  We thought about this only in beginning of 2001 when I could take spare time from work and I was financially secure.

QWhat did you decide to do?  I decided to go to A/a on a tourist visa after travelling to other countries.

QWhat do you mean?  Greece, France, went on bus through Belgium, Holland and Germany.

QWhy decide to go to these other countries first?  I was turning 35 that year so I decided to get some time from work.

QHow much time?  I took leave for each trip.

QHow much leave in total?  1 wk in Greece, 7 days for bus trip.

QWhen take these trips?  Greece - May 2001, Europe – June or July 2001.

QWhere were you working?  Novokova Service Company.

QHow long there?  Since 1996.

QPosition?  Engineer/Deputy Director, now Deputy General Director?

QWhat was salary?  About $800-$1000 month

QWhen decide go to A/a?  Around that time to see A/a and meet Natalia as well.

QWhen?  July

QPurpose of visit was tourism & to meet with Natalia?  Yes, I talked to Natalia over the phone and she approved of my choice.

QNatalia living in Brisbane?  Yes.

QHow long planning to stay?  For about 10 days.

QWas visa granted to you?  No refused.

QWhat decide to do after that?  I continued to work.  I decided to go to UK.  I received UK visa.

QDid you go to UK?  No

QWhy not?  I had problems at work.  I applied for A/an visa at same time.

QWere you successful?  No.

Q     When was this?  Oct 2001

Q     Same purpose for tourism & to meet with Natalia?  Yes, of course.

Q     Any other friends, relatives or contacts?  No, only Natalia’s friends

QHad you asked Natalia to marry you yet?  We discussed it but Natalia had leave this year so we decided to meet and discuss it personally.

QWhen did she arrive?  15 Jan 2002

QHow long did she stay?  2 weeks.

QWhere did you stay?  At my place.  I met her in Moscow b/c I had to bring warm clothes to her.

QDid she come alone?  Yes

QJust to visit you?  Yes – Also she has relatives here.

QIs it her first time back to Russia since going to A/a?  Yes.

QI understand you got married on this trip?  Yes.

QWhen?  26 Jan 2002.”

(cc)At the end of the interview on 20 February 2002, a delegate noted:

“-     Strong doubts that previous marriage by sponsor contrived

-Not satisfied PA & sponsor in genuine marital r’ship

-Limited knowledge of sponsor’s circumstances

-Misleading info supplied on V/V application,

-Inconsistency with dates, sponsor claims r’ship began with (?) in August ’97, PA claims break up first July/August then August/Sept broke up

-Serious doubts about PA’s and sponsor’s credibility.  Issue when sponsor broke up with spouse, doing domestic violence & in 1999 inconsistent and no evidence..

-No joint assets.

-NOT GENUINE  Does not meet Reg 1.15A”

(dd)On 20 February, Natalia was informed that she may not be approved as a sponsor.  The letter to her contained the following:

“I refer to your sponsorship of Mr Evgueni Zverev’s application for a Class 309 (Spouse) visa for immigration to Australia, which was received at this office on 30 January 2002.

Under Migration Regulation 1.20J, the sponsorship of an applicant for this class of visa may not be approved if the sponsor or nominator was granted a relevant permission as the spouse or prospective spouse of another person on the basis of a sponsorship or nomination and no less than 5 years have passed since the date of making the application for that relevant permission.  Under subparagraph 2 of that Regulation the sponsorship may be approved in these circumstances, if there are compelling compassionate circumstances affecting the sponsor.

Our records show that you were previously sponsored/nominated to Australia as an applicant for this Class of visa on 2 February 1998 and that, as a result of that sponsorship a visa was granted to you.”

(ee)In August 2002, Natalia travelled to Russia to be with Evgueni, and to visit relatives.  She returned to Australia on 10 September 2002.

(ff)On 11 November 2002, a delegate of the Respondent decided to refuse to grant the spouse visa to Evgueni.  There were a number of reasons for the refusal, including:

“Mr Zverev has provided false and misleading information to the Department in relation to two visitor visa applications he made in 2001.

In both applications, Mr Zverev declared that he did not have any friends, relatives or contacts in Australia.  He also indicated that he intended visiting Australia for only a very short period (one week) and that his reason for travel was ‘tourism’

At interview on 20 February 2002, Mr Zverev stated that in relation to his visitor visa applications, he had relied on the advice of the travel agent and had not declared Ms Trouskova in his application forms at Question C3.  He stated that the agent had told him that if he declared Ms Trouskova at Question C3 his visa would be refused so he did not declare her.

It is apparent from information on file and submitted by Mr Zverev at interview that he deliberately misled the Department in an attempt to enter Australia.  At interview, Mr Zverev stated that he and Ms Trouskova had discussed his intended travel to Australia.  He also indicated that one of the main reasons for travelling to Australia was to visit Ms Trouskova and that they had discussed getting married over the telephone.

In assessing whether Mr Zverev meets the character test, I have also taken into account Mr Zverev’s comments made at interview on 20 February 2002.  At interview Mr Zverev failed to acknowledge any wrong-doing on his part and stated that he completed the form as instructed by the travel agent.  He also failed to express any regret concerning his past behaviour.

However, in his undated letter (received by email on 16 October 2002), Mr Zverev apologised for providing incorrect information in relation to his two visitor visa applications.

..

Having considered all of the information before me, I am satisfied that Mr Zverev does not pass the character test.

….

Despite being satisfied that Mr Zverev does not pass the character test, I must still consider the exercise of discretion to refuse or to grant a visa. In doing so, as required, I have considered the Minister’s Direction No 21 made under section 499 of the Migration Act 1958.

….

There is a general expectation within the Australian community that visa applicants will not provide false or misleading information to obtain entry.  Persons who engage in such behaviour should not be afforded the benefit of the grant of a visa and there is a strong expectation in the Australian community that persons who engage in such conduct should not be rewarded.  It needs to be noted that it is not a punishment to refuse a visa.  It is the refusal of a privilege, not the denial of a right

….

I have noted that Mr Zverev’s relationship with his Australian sponsor has been assessed against criteria set out in regulation 309 (and the related regulation, 1.15A), and that his application was assessed as not meeting the criteria for grant of a Spouse visa.  In particular, the assessing officer found that the applicant and sponsor are not in a genuine and continuing relationship (as per 1.15A).”

(gg)Natalia obtained Australian Citizenship on 26 January 2003.

8.      Evgueni Zverev gave evidence to the Tribunal by telephone.  He made the following points:

·He is a professional man who has had six years of university training.

·He runs his own company and employs about 30 subcontractors.

·In having the documentation prepared for him for the applications for tourist visa, he relied entirely on the travel agents and their expertise.  He was guided by them.

·He did not sign the first tourist visa application in July 2001.  It was lodged on his behalf.

·He did sign the second tourist visa application in October 2001.  He completed it himself.

·He denied the suggestion that he believed that if he admitted on the application for tourist visa that he knew Natalia, his prospects of being granted the visa would be slim.  He said that he had no knowledge of Australian regulations. 

·He denied that he had any contact with Natalia while she was married to Mr. Nightingale.

·He denied that his intended trip to Australia in 2001, necessarily included an arrangement to see Natalia.  He said, “We did look at that possibility.  It could have happened by chance, if she could visit Sydney while I was there.”.

·He denied that he intended to come to Australia in 2001 to either marry, or live with, Natalia.

·He denied that there was any connection between his attempts to come to Australia in late 2001, and the marriage in January 2002.  There was no ulterior motive.

·The subject of marriage was raised in November 2001, but the final details were made in January 2002.

·He denied that he and Natalia had conspired from about 1997 onwards to first get Natalia into Australia, and to then use her to get him into Australia.

9.      Natalia Zverev tendered a statement and gave evidence before the Tribunal.

·She denied that she had been in contact with Evgueni while she was married to Mr Nightingale.

·She knew in 2001 that Evgueni wanted to travel to Sydney in 2001.  She said that her belief was that he would be on a tour.  She denied that there had been any pre-arranged agreement to meet each other in Australia in 2001.

·She said that she and Evgueni discussed marriage in late October or early November 2001, but did not make a decision on the matter.  She said that they agreed to meet in Russia in January 2002, and further discuss the matter.  She believed that when she left Australia for Russia in January 2002, there was only a 50/50 chance that they would marry.

·She has made a good life in Australia.  She has a good job.

·She has a medical condition which requires her to live in a warm climate.

10.     There is no doubt that the two tourist visa applications in 2001, contained false and misleading statements, in that Evgueni denied that he knew Natalia in Australia, or failed to disclose that he knew her.  I accept the evidence of Evgueni and that of handwriting expert, Barbara Nichol, that Evgueni did not sign the first application but I do not accept that he did not have any input into the details contained therein.  He certainly completed and signed the second application in October 2001, which also contained the false information.

11.     I do not accept the assertions by both Evgueni and Natalia, that there was no plan to see each other in Australia should Evgueni have been granted a tourist visa in late 2001, to travel to Australia.  It was at about that time that they were discussing marriage.  Natalia bought wedding cake decorations and a wedding dress in November 2001.  They were married in January 2002.  It is not believable that they would not have arranged to meet each other.

12.     It is for the same set of reasons, in particular the purchase of the wedding dress, which causes me to reject the evidence of Natalia that there had been no final decision on marriage before she left Australia to go to Russia in January 2002.

13.     I note also that on one of the “Wedding Wishes” cards, tendered as part of exhibit 6, to reinforce the notion of the genuineness of the marriage, the card has been filled in by a large number of co-workers from the shop where Natalia worked before she left to go to Russia to get married.  There are about 25 individual expressions of congratulations.  A few samples are:

“To Natasha and your Groom to be.
Wishing you all
The best for your
Upcoming wedding
From all of us”

“Good luck with your
upcoming wedding
& have fun”

“Have a wonderful
wedding,”

14.     I find that not only did Evgueni give false and misleading information to the Departmental representatives when he applied for visitors’ visas in 2001, he also gave false or misleading evidence to the Tribunal when he maintained that his proposed visit to Australia in late 2001 was for sightseeing purposes only, and that if he happened to meet Natalia it would only have been by chance.

15.     I find that Natalia also gave false or misleading evidence to the Tribunal when she maintained that there had been no plans for her to meet with Evgueni during his proposed visit to Australia in late 2001.  I find that she also gave false evidence when she said that there had been no finalised wedding plans before she left Australia to go to Russia.

16.     I agree with the reasons given by the Respondent’s delegate on 11 November 2002, to refuse the application for a spouse visa, set out in part in paragraph 7 (ff) above, except for one of the reasons.  I find that Evgueni and Natalia are in a genuine and continuing relationship.

17.     I also agree with the assessment of the Respondent’s delegate who refused the visitors’ visas in 2001.  It is more probable than not, that if Evgueni had visited Australia, he would not have returned to Russia after only one week.

18.     The proper administration of the Australian Government’s policy on who can enter Australia, for how long and under what circumstances, relies heavily on the accuracy of personal information supplied by prospective visitors and visa holders. The supply of false information for the purpose of outwitting the policy cannot be condoned.

19.     Similarly, our legal system, including the Tribunal review system, relies heavily on the presumption that witnesses tell the truth, and do not try to mislead the Tribunal.  The giving of false and misleading testimony cannot be condoned.

20. I find that Evgueni does not pass the character test, pursuant to s.501 of the Act.

21.     I am conscious of the fact that Evgueni and Natalia are married, and that the situation of one living in Australia and the other in Russia, must be very distressing for them.  There are significant compassionate circumstances to be taken into account.

22.     However, they have set out to outwit the migration policy.  In my view it would be an incorrect exercise of discretion to effectively allow the application for visa to succeed when it is tainted with dishonesty.  It would also send the wrong message to other potential applicants.  In this case, these considerations outweigh the compassionate considerations.

23.     The decision to refuse the visa is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.

Signed:         .......................................................................................
           C. O’Donovan, Associate

Date/s of Hearing   20 August 2003
Date of Decision   10 February 2004
Applicant   Mrs. Nightingale-Zverev
Solicitor for the Respondent      Mr. P. Hardman