Oksion and Minister for Immigration, Multicultural and Indigenous Affairs

[2003] AATA 736

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 736

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2002/1021

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MAYA OKSION

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

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

Date15 July 2003

PlaceMelbourne

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the remaining relative visa not be refused under s501 of the Migration Act 1958.

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Immigration – remaining relative visa – refusal to grant – character test – false and misleading conduct in dealings with immigration authorities – decision to refuse set aside.

Migration Act 1958 – s501

Re Papak and Minister for Immigration, Multicultural and Indigenous Affairs (2003) AATA 518

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 1987 at 195

Re Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs, AAT (Decision No 9822, dated 7 November 1994)

Goldie v Minister for Immigration and Multicultural Affairs, Federal Court of Australia ,FCA 1277

EDITED ORAL REASONS FOR DECISION

15 July 2003 Mr S P Estcourt QC., (Deputy President)          

1. This is a decision delivered orally in the matter of Maya Oksion and Minister for Immigration, Multicultural and Indigenous Affairs. The review applicant, Maya Oksion, has applied to the Tribunal in respect of the refusal of a subclass 104 remaining relative visa, to her daughter in Kiev, Irena Oksion. The respondent's delegate refused the visa applicant's visa on 12 September 2002 on the grounds that she did not meet the criteria for a remaining relative visa and that she failed to meet the character test laid down by section 501 of the Migration Act 1958.

2.      The finding that the visa applicant did not meet the eligibility criteria for a remaining relative visa was based on the opinion formed by the respondent's delegate that despite the visa applicant's assertions that she was divorced from her former husband, Valerie Klochko and lived apart from him, she and Mr Klochko remained in a continuous marital relationship.  The finding that the visa applicant failed the character test was based on the respondent's delegate's assessment that the visa applicant, at interview with migration officers on 17 February 2000, provided false and misleading information in an attempt to gain permanent residence in Australia.  In her visa applicant lodged on 12 October 1998, the visa applicant declared that she had married Mr Klochko on 30 June 1988 and had divorced him on 31 October 1996.  However, on 19 May 1999, an Australian Embassy officer rang the visa applicant's telephone number to arrange an interview and Mr Klochko answered the telephone, subsequently telling the embassy officer that although he and the visa applicant had been officially divorced, they continued living together.

3.      At interview on 17 February 2000, the visa applicant stated that since their separation in 1993, the only contact she had had with Mr Klochko was in 1996, when he gave his consent for the divorce, and that Mr Klochko had returned to his first wife.  When it was pointed out to the visa applicant that Mr Klochko had answered the telephone at her flat, she claimed that it was a friend of hers who said he was Mr Klochko.  At this point in the interview, the visa applicant was reminded about the consequences of making false and misleading statements to migration officials and after some time, she admitted that it was Mr Klochko who had answered the phone, but that they had only lived together for a few weeks in May 1999.

4.      In opening his case, I understood Mr Brereton, counsel for the respondent, not to abandon reliance on the proposition that the visa applicant and Mr Klochko remained in a permanent relationship, and thus that she not only failed the character test but that she also failed to meet the eligibility criteria for a remaining relative visa.  This of course was the basis of the decision of the respondent's delegate, which is currently under review.

5.      Now on the assumption that the visa applicant and Mr Klochko in fact remain in a permanent relationship, the position would be that the visa applicant's conduct at interview was all the more egregious because it would mean that even in the end, the admission of a short period of resumption of cohabitation in an attempted reconciliation would still not be the truth, but would be a continuing and uncorrected false statement supporting what would be false and misleading information in a similar vein on the face of the visa application form.

6.      It is therefore apparent that a finding as to the nature of any relationship remaining between the visa applicant and Mr Klochko must come first, as it is determinative of both the grounds of refusal of the visa, if it is a finding adverse to the visa applicant.  If, however, it is a finding in favour of the visa applicant, it not only clears the way to a consideration of her application on the basis that she meets the eligibility criteria, but it allows her character to be assessed on the basis that although at interview she first practised to deceive immigration officers, when she was warned a second time against providing false and misleading information and the consequences of her doing so, she did then go on to tell the complete truth.

7.      Now the enduring moral qualities of a person who lies, but then reconsiders and tells the truth are in a different category altogether from a person who lies and persists in the lie, perpetuating it despite all warnings and beyond the last opportunity to recant.

8.      On the subject of the nature and the extent of the relationship between the visa applicant and Mr Klochko, I have had a good deal of evidence.  The review applicant, who appeared to me to be a transparently honest witness and who was not challenged or contradicted in this respect, said that her daughter had thrown Mr Klochko out in 1993, three years before the review applicant herself left the Ukraine in September 1996.  She said that Mr Klochko was a big drinker.  She also said that he had returned to his first wife and that her daughter had lived alone with her son since the time of the separation.

9.      The visa applicant herself gave uncontradicted evidence that she married Mr Klochko in 1988, separated from him in 1993 and divorced him in 1996.  She said that they had not lived together since 1993, apart from a short period of one week or so in 1999.  The visa applicant said that she had separated from Mr Klochko in 1993 because he was a big drinker, that she had hoped that something would come out of the marriage, but that nothing did and that she wanted to improve her life.  She said that in 1999 she had again wanted for something to come out of the relationship but again, nothing did.  Under cross-examination by Mr Brereton, the visa applicant denied that she had lived together with Mr Klochko longer than she had said in 1999, and said that it was “such a life mistake” of hers to have had him back that she could not forgive herself.  She felt so bad that she was unable to confess to her mother that she had been living with Mr Klochko again. 

10.     Mr Klochko himself gave evidence to the Tribunal that he had not lived together with the visa applicant after 1993, except for a period in 1999, shorter than two weeks, when they had tried to reconcile but, as he put it, "nothing happened, it didn't work".  Mr Klochko said that he did tell the Australian Embassy official who telephoned in May 1999 that he and the visa applicant continued to live together.  He said that he did so because he thought they were going to, but she didn't want to, and his male “conscience”, (which translates from Russian also to pride or ego), would not let him admit that.  He said that his inability to recall the period of resumed cohabitation when spoken to by the visa applicant's migration agent, Ms Grinberg, on 9 January this year, was because he was taking a lot of medication after suffering a micro stroke and because he did not feel like answering any questions. 

11.     The Tribunal next heard evidence from Lydia Goloub, the caretaker of the flats where the visa applicant and her son live.  She said that she sits on the bench near the door of the apartments and sees everyone who comes and goes.  She said that she had never been inside the visa applicant's flat, but that she lived alone with her son, that there was no man in her life and that she did not know Valerie Klochko.  Ms Goloub accepted there were people who visited the apartments who she did not know, but the effect of her evidence precluded the possibility of the visa applicant living in a permanent relationship with a man.

12.     Finally, the Tribunal heard evidence on this subject from Nina Viskrivets, a friend of the visa applicant for over 10 years.  She said that the visa applicant was a kind and decent person whose marriage to Mr Klochko broke up because of his addiction to alcohol and the consequent quarrelling.  She said that they got divorced three or four, maybe five years ago, but when they were married they didn't live together all the time and they returned to each other on more than one occasion.  She said, however, that she didn't know anything about the brief period of cohabitation in 1999 and had no explanation for why the visa applicant had not told her because she was usually “pretty open” with her, she said.

13.     The overwhelming weight of all this evidence is that the visa applicant married Mr Klochko in 1988, separated from him as a result of his alcoholism in 1993 and divorced him in 1996, resuming cohabitation with him thereafter for only a brief period of less than two weeks in May 1999.  Accordingly, I make that finding.  I also find that to the extent the visa applicant was not open with her mother and Ms Viskrivets about resuming cohabitation with Mr Klochko, it was as a result of her shame and embarrassment and not borne of any sinister motive.

14.     It follows from these findings of fact that the visa applicant meets the eligibility criteria for a subclass 104 remaining relative visa and that her visa application form does not contain any false or misleading information or declarations on the face of it.  The principal issue remaining, therefore, is whether the visa applicant fails the character test as a result of her conduct at interview with embassy officials on 17 February.

15. Section 501 of the Migration Act 1958 provides, relevantly:

“The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test if, having regard to, (amongst other things), the person's past and general conduct, the person is not of good character.”

16.     The visa applicant carries the onus of satisfying the Tribunal that she is of good character; see for example Papak and Minister for Immigration, Multicultural and Indigenous Affairs (2003) AATA 518, paragraphs 35-41. However, given my finding as to the reason for her lack of openness with her mother and/or Ms Viskrivets, and given that there is no suggestion on the remainder of the evidence that the visa applicant is anything other than an honest, decent, hardworking nurse and mother, I find myself only needing to consider her alleged immigration misconduct as a possible barrier to the discharge of her evidentiary burden.

17.     The first step in a consideration of that alleged misconduct is an examination of the transcript of the interview with the visa applicant and embassy officials on 17 February 2000.  The interview commenced with the interviewing officer advising the visa applicant of the purpose of the interview and advising the penalties for the provision of false and misleading information.  The visa applicant was asked:

After your husband left in 1993, where did your husband live?  Did he move?

She replied:

He had his own flat but I don't know, we didn't have any contact with him.

She was asked:

Do you have any contact with Mr Klochko?

She replied:

No.

She was asked:

When did you see him the last time?

She replied:

1994, occasionally.

She was asked:

You didn't see him at all since 1994, at all?

She replied:

That is right.

She was asked:

But you divorced him in 1996.  Did you see him when you divorced him?

She replied:

Yes, I forgot.  I met him when he gave me his consent to divorce him.  I thought you meant meeting when we both wanted to.

She was asked:

Does he know that you moved to a new flat?

She replied:

Not unless his friends told him.

She was asked:

Did he ever visit you in your new flat in ......

She replied:

No.

She was asked:

Do you want to change anything you have said?  Maybe you forgot something.

She replied:

The only thing that I wanted to say, a man, my friend, answered the phone in February 1999.  He introduced himself as my ex-husband.  It was Lina Waterhouse and she advised about the interview trip.

She was then informed:

On 19 May 1999, our embassy called this number and the phone was answered by Valerie Klochko.  He gave us all the information about himself and explained that although you were divorced, you continued to live together.  We didn't have any doubts it was Mr Klochko.  He was very interested to pass all information to you but we couldn't discuss it to you [sic].  Please give me your comments..  I warn you again about providing me with false and misleading information.  If you provide me with false and misleading information, I will refuse your visa application on character grounds.  Do you want to take time to think about your answer.  (My emphasis)

There was an obvious pause from the record and she replied:

I am ready to answer.  It was one time when we lived together again.  It was for a few weeks.  I hoped we could live together again but it didn't work out.  I didn't want to tell you about it.

She was later asked:

Why did you decide first to say it was one of your friends and not him who answered the phone?

And she responded:

Because I was uncomfortable telling you I lived with him in 1999.

18.     I make the following findings of fact relating to these exchanges at interview.  Firstly, the visa applicant knew that Mr Klochko had spoken to embassy officials on the telephone well before she was interviewed.  Secondly, it was not shame and embarrassment that prevented her from telling the interviewer of the short period of attempted reconciliation but a desire to avoid an admission that she knew might well have the potential to complicate the assessment of her visa application.  Thirdly, that at first her answers were deliberate lies but that when she was asked if she had forgotten something, she then told a half truth, not knowing how much the interviewer knew and hoping she could thereby deceive.  Fourthly, that when she was confronted with the full extent of the interviewer's knowledge and was quite generously given a second warning, she recanted and told the complete truth.

19. The question which arises is whether the conduct exhibited by the visa applicant during those exchanges is past and general conduct which causes her to fail the character test under section 501 of the Act. It needs to be said at once that general conduct does not mean prevalent or usual conduct. Some instances of general conduct or even a single incident can outweigh the many good qualities possessed by a person if it is sufficiently serious and weighty, see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 1987 at 195 and Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs, AAT decision number 9822 dated 7 November 1994, a decision of Deputy President McDonald's. However, the notion of good character within the context of s501 of the Act was explained by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs, Federal Court of Australia decision number 1277, dated 14 September 1999 at paragraphs five to seven. There, the Full Court of the 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.”  (My emphasis)

20.     I find myself wholly unable to say that the visa applicant's lies on this occasion, recanted as quickly as they were told, thus restoring what I have found to be the complete truth, amount to an adverse incident of sufficient weight and seriousness to allow it to be said that her enduring moral qualities are so deficient as to show that it is for the public good to refuse her entry to this country.  Accordingly, I hold that the visa applicant does not fail to pass the character test because of her past and general conduct exhibited at interview with embassy officers on 17 February 2000.  I am otherwise reasonably satisfied that the visa applicant passes the character test.

21. Were I to be in error in so holding, I would exercise my residual discretion in favour of the visa applicant, after weighing the primary and other considerations set out in Ministerial Direction No 21 given under s499 of the Act, which is binding on decision-makers, including the Tribunal. My reasons in this regard are that whilst the Direction makes it clear that the Australian Government regards serious offences against the Migration Act as very serious and whilst the provision of false and misleading statements in connection with a visa application is such a serious offence, each of the primary considerations under the Direction are, in this case, directly impacted by the very transient nature of the visa applicant's lies, the restoration of the truth at the invitation of the interviewer as part of the process adopted and the complete lack of any enduring damage to the control mechanisms this country exercises in the processing of visa applications.

22.     In those circumstances, and probably in my view in this case, in any event, the primary considerations are outweighed by the relevant “other considerations”, namely the degree of hardship to immediate family members lawfully resident in Australia and the purpose of the visa applicant's entry into Australia and the accompanying significant compassionate circumstances. 

23.     The review applicant and the visa applicant are of Ukrainian Jewish ethnicity.  The review applicant, who is now 66 years old, came to Australia as part of a humanitarian program, which she expected her only daughter would be able to utilise but which program was discontinued.  The review applicant gave evidence that anti-semitic attitudes still remain in the Ukraine and that she would not herself have left her daughter except that she was sure that she would be able to bring her out under the same Jewish welfare program.  It is obvious she loves her daughter very much and misses her terribly. 

24.     Since arriving in Australia in 1996, the review applicant has sent some 22 aid parcels to her daughter.  She says that her daughter cannot afford to buy anything and she sends her clothes and food and shoes.  Further, the review applicant keeps only one fortnightly payment of her pension for herself and her husband, who is the visa applicant's stepfather.  The next fortnightly instalment goes straight to her daughter in Kiev, either by way of friends who are visiting the Ukraine or via Western Union.  The review applicant says that she and her husband cannot afford to buy anything because every spare penny goes to her daughter and grandson.  Further, she says that she has huge telephone bills as a result of maintaining contact. 

25.     The review applicant is in poor health.  She says that she cannot sleep, that she does not want to go out of the house and that she can't remember when she last smiled.  She said that if her daughter's visa is refused, she won't have any reason to live.  Medical evidence establishes that the review applicant suffers from depression, perhaps reactive to the task of caring for her chronically ill husband but exacerbated by her separation from her daughter.  To allow the reunion of mother and child would have tangible benefits as well as satisfying the review applicant's emotional needs.  Her health would benefit, she would have help and support to care for her ailing husband and she and he would be financially better off as a result of the savings brought about in the areas of phone calls, at least, and the cost of maintaining separate households in separate countries.

26.     The review applicant visited her daughter and grandson in the Ukraine in August 2002, but the long flight from Australia caused her legs to swell and she said she had treatment from former colleagues in the ambulance service there for two weeks as a result.  She said that she now understands that the flight from Australia is too long for her at her age. 

27.     On the other hand I infer that if the visa applicant was refused a remaining relative visa on character grounds she would experience difficulty in obtaining a visitor or short stay visa for the purpose of coming to Australia to visit her mother. 

28.     All of the those factors cause the relevant “other considerations” set out in the Ministerial Direction to outweigh, in this case, the somewhat weakened primary considerations.    Were I called upon to do so, I would exercise my discretion in favour of the visa applicant even if she failed the character test.

29. It follows that the decision of the Tribunal is that the decision under review is set aside and this matter is remitted to the respondent with the direction that the remaining relative visa not be refused on the ground that the visa applicant does not pass the character test under s501 of the Act.

I certify that the 29 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   14 and 15 July 2003
Date of Decision  15 July 2003
Counsel for the Applicant           Ms L Grinberg
Solicitor for the Applicant           
Counsel for the Respondent     Mr M Brereton
Solicitor for the Respondent     Australian Government Solicitor