Olexander Prystay and Minister for Immigration and Citizenship
[2012] AATA 508
•3 August 2012
[2012] AATA 508
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2311
Re
Olexander Prystay
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 3 August 2012 Place Melbourne The Tribunal affirms the reviewable decision dated 25 May 2012.
(sgd) John Handley
Senior Member
MIGRATION – visa cancellation – Applicant convicted of 20 counts of obtaining financial advantage by deception and related offences – substantial criminal record – fails to pass character test –consideration of previous general conduct and total criminal history – Direction 41 – imbalance of weight to primary and other considerations points to visa cancellation – decision affirmed
LEGISLATION
Migration Act 1958 s 501
SECONDARY MATERIALS
Direction [no. 41] – Visa refusal and cancellation under s501
REASONS FOR DECISION
Mr John Handley, Senior Member
The applicant pleaded guilty to 20 offences involving deception in the County Court of Victoria on 26 August 2010. He was sentenced to a total effective term of 37 months imprisonment. Judge Duggan directed that he serve a minimum of 28 months before being eligible for parole.
As a consequence, on 25 May 2012 the Minister for Immigration and Citizenship (the Minister) decided to cancel the applicant’s Class BC Subclass 100 Spouse visa which permitted him to reside in Australia. The applicant has sought review of that decision.
Section 501(2) of the Migration Act 1958 (the Act) provides that the Minister may cancel a visa that has been granted if it is reasonably suspected that the person does not pass the character test. A person will not pass the character test if the person has a substantial criminal record which relevantly includes being sentenced to a term of imprisonment of 12 months or more (ss 501(6)(a) and (7)(c)).
The discretion in s 501(2) has been enlivened because of the applicant’s conviction. In exercising the discretion, decision-makers must have regard to Direction [no.41] – Visa refusal and cancellation under s 501 which has been issued by the Minister pursuant to s 499 of the Act (Direction 41). Direction 41 sets out a number of primary and other considerations that decision-makers must have regard to when deciding whether it is appropriate to cancel a visa.
THE APPLICANT
The applicant was born on 11 October 1977 and now aged 34. He is a Ukrainian citizen who first arrived in Australia on 1 January 2001 on a Temporary Business Entry (Class UC) Subclass 456 visa which was valid for 3 months. He lodged a protection application on 15 February 2001. The application was refused. On 12 September 2001, he was located by the authorities and detained in an immigration detention facility for approximately 7 months. He was granted a bridging visa pending an appeal to the Full Court of the Federal Court. During his time in Australia there were proceedings issued in the Refugee Review Tribunal, the Migration Review Tribunal and the Federal Court, all of which were unsuccessful. He remained in Australia until 22 September 2002 and was then removed by consent.
Prior to leaving Australia in 2002, the applicant commenced a relationship with an Australian citizen, Victoria. She went to visit the applicant in the Ukraine and they were married in March 2003. Victoria returned to Melbourne shortly thereafter and gave birth to their child, Anastasia, on 23 July 2003. Anastasia is an Australian citizen. The applicant qualified for a Spouse Provisional (Temporary) Visa Subclass 3091 on 27 May 2004. The visa required him to enter Australia before 10 September 2004. He entered on 2 September 2004.
The applicant and Victoria initially lived with her parents. However, they encountered problems early in their marriage and separated in January 2005. They later divorced. The applicant entered into a de facto relationship with Marina Atzil and that relationship ended when he returned to the Ukraine on 4 February 2006.
The applicant returned to Australia on 5 May 2007 and departed for the Ukraine on 18 December 2007. Whilst in the Ukraine, the applicant married Liudmyla Shtefanitsa (Liudmila) on 12 June 2008.
The applicant returned to Australia on 4 April 2009 on a Subclass 100 Spouse (Migrant) visa, because a parenting order had been made in the Federal Magistrates Court, partially in his favour, as the father of Anastasia. The applicant was arrested on his return to Australia. Liudmila arrived in Australia later in 2009 on a tourist visa which permitted her to remain here for 3 months. She returned to the Ukraine at the expiration of that period where she continues to reside. She and the applicant remain married. They have not had children.
SENTENCING REMARKS
Judge Duggan in the County Court recorded that the applicant pleaded guilty to 2 counts of obtaining property by deception, 16 counts of obtaining a financial advantage by deception, one count of attempting to obtain a financial advantage by deception and one count of handling stolen goods. His Honour referred to a summary offered by the Prosecution and pointed out that a significant number of the counts were rolled‑up counts and in total, 79 offences were alleged. His Honour found (at [3]):
… that each of those 79 offences constituted a significant fraudulent act related to unauthorised transfers from unsuspecting bank customers into bank accounts controlled by you or your associates held in fictitious names.
His Honour found that many of the offences were carried out with the intention of creating identification documents that would assist in establishing bank accounts in fictitious names (at [4]). The applicant established 39 accounts. Fortunately, many of those accounts were found to be suspicious before withdrawals were made and only in one instance were funds accessed.
The offences also involved establishing mobile telephone contracts set up in fictitious names without any intention of repaying the bills. Consequently, telephone companies incurred substantial losses.
The applicant gave evidence in this review of the number and type of offences which are either not apparent from the sentencing remarks or were not known by the Prosecutor.
The applicant was unrepresented in this review. He said he was unable to obtain representation either through the Victorian Legal Aid Commission or a pro bono scheme in Victoria. Attached to his Statement of Facts and Contentions, was a letter received by the applicant from Pilch advising him that our pro bono firms and the Victorian Legal Aid Commission did not have capacity to provide assistance. An information kit provided by the Refugee and Immigration Legal Service entitled, Visa cancellation under s 501 of the Migration Act was provided to him.
A Russian speaking interpreter was available to assist him. Two friends of the applicant gave evidence in support of his character. The respondent was represented by Mr Brown, a solicitor. A number of documents were referred to in the course of the review and they will be referred to in these reasons.
DIRECTION 41
Part B of Direction 41 contains the criteria which must be considered in deciding whether a visa held by a person should be cancelled. The primary considerations which must be considered in every case are set out in paragraph 10. Those considerations are as follows:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that a person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)(ii) the non-refoulment obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Protection of the Australian community
The protection of the Australian community requires an assessment of the level of risk the community will be exposed if an applicant is permitted to stay in Australia (10.1 of Direction 41). In assessing the level of risk, I must have regard to the seriousness and nature of the relevant conduct (10.1.1) and the risk that the conduct may be repeated (10.1.2).
Paragraph 10.1.1 sets out the factors relevant to the seriousness and nature of the conduct. Crimes involving violence or a threat of violence are of a particular concern and sub-paragraph 2 provides examples of offences that are considered to be serious. The list is not exhaustive. Consideration must be given to the sentence imposed (which is regarded as indicative of the seriousness of the offender’s conduct against the community) and to the extent, if any, of the person’s criminal record. Information contained in authoritative sources such as judicial comments and professional psychological reports must be considered. Any relevant mitigating factors must also be considered.
Part 10.1.2 requires that consideration be given to whether there is a risk that the conduct may be repeated. On that issue, factors which must be considered include, an applicant’s previous general conduct, any recent history of conviction, evidence of rehabilitation, the prospect of further rehabilitation and whether the person has breached any judicial orders including parole, bail, suspended sentence and other undertakings or conditions imposed by the courts.
Seriousness and nature of the conduct
The offences listed at 10.1.1(2) do not specifically record the offences for which the applicant was convicted. However, he created false identities to obtain financial gain. Those offences do, in my view, constitute serious theft (10.1.1(2)(m)). His conduct was fraudulent and deceptive and the nature of the offences committed by the applicant is, in my view, serious.
In evidence before the Tribunal, the applicant said that he was a member of a group of persons who obtained passports, drivers’ licenses and Medicare cards. He placed his own photograph on the documents and created false identities. Approaches were then made to financial institutions and mobile telephone providers. The false documents were presented to satisfy statutory identity requirements. In return, credit cards and mobile telephones were issued. The credit cards permitted the applicant and his colleagues to obtain cash and to purchase goods. Of course, there was never any intention to repay the debts incurred on the credit cards or by the use of the telephones.
The applicant said his criminal activity started in June or July of 2005 and continued into February 2006 when he left Australia. He returned in 2007 and resumed that activity. He estimated that between 5 and 7 bank accounts were opened in 9 different names. An equivalent number of mobile telephone accounts were also created. The applicant estimated that a total of $50,000 was gained from using the credit cards. Consistent with the evidence before Judge Duggan, he said that he received approximately $15,000 in cash and computers. The value to him of the use of mobile telephones is not known.
I do regard his activity both as an individual and as a member of a group, as particularly serious. It was well planned, brazen, and involved the use of identity documents that were both false and intended for no purpose other than to defraud banks and mobile telephone providers. That the applicant had access to a person or persons who were able to supply him and his colleagues with false passports, is also disturbing.
The offences committed by the applicant occurred during a period of time when he was residing in Australia as the holder of a visa. In effect, he was given permission to reside here. That permission was abused. He explained that he had met up with wrong friends. On reflection, I understood that he was either influenced or was lacking maturity sufficient to prohibit him resisting their overtures. Nonetheless when the applicant left Australia in 2006, he said that he did not think that he would be detected (indeed, he dismissed a suggestion put to him that he then left to avoid detection). When he returned in 2007, apparently not having paused to consider (during his absence), the gravity or the nature of his prior conduct, he resumed the same criminal activities. He said he did not think that he would get caught nor did he appreciate the seriousness of his conduct.
The applicant acknowledged that Judge Duggan understood from the prosecution brief that a total of 79 offences were alleged. The applicant agreed in his evidence before the Tribunal that it was more likely to be approximately 100 in total. On balance therefore, the applicant committed, alone or in concert, multiple offences over a considerable period. He also decided to resume offending despite an absence from Australia for an extended period.
The nature of the applicant’s offending is very serious and of particular concern when assessing the degree of risk he would pose on the Australian community should he permitted to stay. The seriousness of his conduct is reflected in the sentencing remarks of Judge Duggan. Despite counsel’s submissions on the mitigating features of the case, Judge Duggan was of the view that only a prison sentence was appropriate in the circumstances and imposed a minimum term of 28 months (at [24-25]).
The date that the applicant last offended is not known. The movement records within the G-documents indicate that the applicant returned to Australia on 5 May 2007. He then resumed offending. He departed Australia on 18 December 2007. He was absent from Australia until 4 April 2009 and was arrested on his arrival at Sydney airport. He was eventually granted bail and commenced his prison sentence in August 2010. He is not due for release until 19 December 2012. There is no evidence to suggest that he has offended since 2007, although in reality, he was absent for about 18 months and has been imprisoned for approximately the last 2 years. The applicant does not have any prior criminal history.
The applicant said that he first started offending in 2005 after he moved away from living with his de facto partner, Marina Atzil. It was a difficult time in his life and he said he had many issues to deal with which was emotionally traumatic for him. He was involved in contested family law proceedings to gain access to his daughter. In April 2005, his former wife had an Intervention Order issued against him alleging that he had threatened her at her home. The applicant said that he went to the house to see his daughter in accordance with the court Orders. The applicant said the Intervention Order was the subject of court proceedings later in 2005 and, based on the evidence, the Magistrate revoked the Order. In November 2005, the Federal Magistrates Court made the final Orders concerning the care, welfare and development of Anastasia, including his right to contact her. During that year the applicant’s relationship with Victoria and her parents was turbulent, to say the least.
The applicant explained that a reason for him commencing to offend in 2005 was he had lost (his) way after he separated from Victoria (and later Marina) and as a consequence of the Orders made in the Federal Magistrates Court.
A number of medical reports are contained within the G‑documents. They are entirely concerned with the applicant’s treatment after he ceased offending. In a report dated 2 August 2010, Dr Witis, (a doctor in general practice who described herself as having considerable training and experience in psychological medicine), described the applicant as naive … leads him to be exploited. In what appears to be a more recent report prepared for the purposes of this proceeding, Dr Witis refers to the applicant’s offending and reports that his behaviour whilst in Australia was correct in every respect; however he did end up breaking the law. With all due respect to Dr Witis, her opinion is somewhat contradictory and difficult to reconcile. Accordingly, little weight if any can be attached to her opinion.
On balance and having regard to the factors in paragraph 10.1.1 of Direction 41, I am satisfied that considerable weight should be levied against the applicant. He was engaged in the commission of multiple offences over a long period of time. He was consciously engaged in fraudulent activity, involving the acquisition, possession and use of false identification documents which caused financial loss to banks and telephone service providers. Despite an interruption in his offending by leaving Australia, he resumed his criminal activity when he returned. The serious nature of his offending cannot be ignored when considering the protection of the Australian community.
I acknowledged that there were issues confronting the applicant for a greater part of 2005 which may have influenced his judgement. If he had committed one offence only, my attitude to his conduct may have been considerably different. However, that he continued to offend, especially after he returned to Australia in 2007, satisfies me that the difficulties he encountered in 2005 do not excuse or mitigate the seriousness and nature of his conduct.
The risk that the conduct may be repeated
In assessing the level of risk the Australian community will be exposed to if the applicant’s visa is not cancelled, I must have regard to the risk that the conduct may be repeated having regard to the applicant’s previous general conduct and total criminal history. A recent history of convictions, the extent of rehabilitation and compliance with judicial orders are relevant considerations when assessing the risk of re-offending (10.1.2).
In addition to the criminal behaviour that resulted in his conviction in 2010, the applicant’s conduct in 2001 and 2002, although not attracting criminal charges, was, for reasons which will follow, both an abuse of the permission granted to him by the visa that allowed him to enter Australia and a profound, if not disgraceful misrepresentation of his immigration status.
The applicant entered Australia on 1 January 2001 holding a Temporary Business Entry (Class UC) Subclass 456 visa which was valid for 3 months. On 15 February 2001 he lodged an application seeking a protection visa claiming to be a refugee. The applicant declared on the last page of the form that he completed that the information he supplied was complete, correct and up-to-date in every detail and he understood that if he gave false or misleading information his application may be refused and his visa may be cancelled. A warning also appears on the form that providing false and misleading information in the declaration is subject to penalties under the Act.
Notwithstanding the declaration and warnings, in the form, the applicant declared that he held the occupation or profession as a journalist; that he had completed a journalism degree of 4 years at a university in Ukraine; that he was employed as a columnist for 2 years by the Moloda Galichina newspaper and in support of the application, he annexed a two-page submission explaining his circumstances.
In summary, the applicant pleaded his case for refugee status on the basis that he had been persecuted in Ukraine by reason of his employment with the newspaper, together with 3 others, because they frequently exposed government corruption. Such was the fear expressed by the applicant, he recorded that he wrote newspaper articles contrary to the interests of the government under a false name. A prominent anti-corruption journalist, Georgiy Gongadze, had disappeared and some months was found dead. The applicant relied on the disappearance and death of Gorgadze to justify his fear and illustrate the extent of the risk that he and others faced when reporting against the government. The applicant also recorded that despite warnings from his editor, he published an article concerning an incident involving a videotape which purported to depict a connection between members of the government and criminal elements. After his article was published, the applicant said that he was attacked by 4 masked men and warned about the consequences of publishing articles contrary to the interests of the government. Eventually, the applicant and his colleagues arranged to leave money to their respective families; they went into hiding, changed their appearance and escaped to Budapest where they then flew to Australia.
The applicant does not possess a degree in journalism, he did not attend a university in the Ukraine and has never been employed as a journalist with the Moloda Galichina newspaper or elsewhere. There is nothing that points to him ever having an association with Georgiy Gongadze who was, and remains well known, as a journalist who was an exponent of government corruption in the Ukraine. It is true that he disappeared and his mutilated body was found some months later.
The applicant engaged the services of a migration agent. For reasons which are not apparent, it appears that an application for review of a decision of the Minister to refuse the applicant's request for a protection visa was not lodged in time by the agent. Thereafter, there was a succession of legal proceedings instituted by the applicant in the Refugee Review Tribunal, the Migration Review Tribunal, the Federal Court and later, the Full Federal Court (although those proceedings were later abandoned). Not content with attempting to overturn the decision to refuse a protection visa, the applicant was also engaged in litigation challenging the refusal to grant him a bridging visa.
The applicant admitted in these proceedings that his application for a protection visa was not genuine. He admitted the entirety of the content of the document annexed to his application was untrue. He explained that he and 3 friends arrived in Australia on 1 January 2001, they looked around Australia and [they] liked it. They engaged the services of a migration agent and alleged they were the victims of his fraud. The irony of that allegation, in the circumstances of the criminal conduct which gave rise to his current imprisonment, is not lost.
I should note at this stage that Judge Duggan recorded in his sentencing remarks that the applicant was placed in immigration detention because his visa was cancelled as a result of a mistake of his migration agent (at [13]). I will assume that the true circumstances surrounding the cancellation of his visa were withheld by the applicant or were not known by the prosecutor.
The applicant dishonestly represented that he was in need of protection and sought refugee status because of circumstances that that he alleged had occurred in the Ukraine and the retribution and punishment to which he would be exposed should he return. On the one hand he was never at risk nor did he ever engage in the activities that he alleged. But it is significant, in my view, that he took advantage of the circumstances of Gongadze who was well known as a print journalist who had opposed the Ukraine government. Not deterred from accepting the refusal of a delegate of the Minister to grant him a protection visa, he then engaged in a series of litigation before a number of Tribunals and in the Federal Court seeking both a protection visa and a bridging visa to which he knew he had no lawful entitlement. He unnecessarily and mischievously wasted the resources of the Federal Court and the Tribunals, and caused an unnecessary workload upon judges, officers and Members, whose time and resources would have been better utilised processing genuine applications.
Criminal charges were not laid against the applicant. However, that does not detract from the serious nature of his conduct which was deceitful and showed a blatant disregard for the Australian authorities and the community at large. He ultimately agreed to leave Australia in 2002.
Having considered the applicant’s conduct commencing 2 weeks after he arrived in Australia and then continuing between 2001 and 2002, his previous general conduct is disconcerting and weighs in favour of the visa cancellation.
The applicant arrived in Australia in 2001 when he was then 24 years of age. He had completed approximately 4 years of secondary school and then obtained a qualification in the Ukraine of wood processing. He was then engaged in compulsory national service in the Ukraine army for about 18 months. When he was discharged from the army he was employed as a lighting technician with a television company and later obtained employment in the construction industry as a painter. There is no evidence that the applicant committed any offences in the Ukraine or in Australia before 2005, that is, approximately 4 years after he first arrived.
The applicant was released on bail when he was arrested in February 2009. He has satisfied a Federal Magistrate that he deserves contact with his daughter. It was his evidence that he continues to receive the support of his parents in the Ukraine. There was no evidence that the applicant had breached any Orders made by any courts or conditions of bail.
Character evidence was given on his behalf in these proceedings by Mr Turcan who has known him for many years and who has employed him. He spoke very highly of his skills as a tradesman in the construction industry. He said he was shocked to learn that the applicant had offended. He has visited the applicant in prison and said that he has rehabilitated, acknowledged his mistakes and expressed regret. Mr Turcan is prepared to employ him when he is released. Mr Jarrel, another character witness, has known the applicant since 2007 and previously shared accommodation with him. He first met the applicant when he was engaged in the construction of a home being built by his mother. Both he and his mother were very surprised to learn that the applicant had offended. He visited the applicant at the prison and has observed him to be remorseful, upset and disappointed at his prior conduct. Mr Jarrel said that everyone deserves a second chance and it didn’t cross [his] mind not to trust him.
The character evidence and documents lodged indicate that the applicant has had a good working history in Australia. He has been engaged in the construction industry, as a painter. He holds an ABN registration, is a member of the Housing Industry Association and has completed a certificate course in building and construction management. Whilst incarcerated at the Beechworth Correctional Centre, the applicant completed a TAFE accredited certificate in business management, including clerical and occupational health and safety skills; reading, letter writing, document preparation and the English language; safe work practices in the construction industry; furniture making; use of power tools and operation and maintenance of chainsaws.
A prison officer at Beechworth recorded that the applicant has been polite and courteous, prompt in attending appointments and has received good reports from his supervisors (G‑documents, p 121). A report from another officer at the same facility recorded that the applicant had been engaged in the restoration of disposed bicycles which had been distributed to victims of flooding and bushfires in north-eastern Victoria (p 119).
During his term of imprisonment, the applicant has engaged in a number of courses concerning parenting, relationships and family, anger reduction, problem‑solving, alcohol treatment and stress reduction.
Medical reports completed by the solicitors acting for the applicant in the criminal proceedings are also found within the G-documents.
In a report prepared on 6 August 2010, Dr Cooke, a consultant psychiatrist at the Alfred Hospital recorded that the applicant attended the emergency department on 18 July 2010 with self-inflicted wounds. He was an impatient between 26 July 2010 and 2 August 2010 because of increased suicidal ideation. When he was discharged on 2 August 2010, he was readmitted on the same day. The applicant said that he readmitted himself on 2 August 2010 because his flatmate was away, he did not feel safe and he did not trust himself. He came under the care of a crisis team within the hospital and it was noted that he had increased suicidal ideation and was very concerned about the impending criminal proceedings. It was also noted that he was then being treated by a general practitioner for depression and had been prescribed antipsychotic medication.
Those treating the applicant considered that his army service in the Ukraine army and his immigration detention in Australia were traumatic experiences for him. A diagnosis was made of major depressive disorder with co-morbid post-traumatic stress disorder and probable alcohol dependence and alcohol abuse. It was thought that if he were to persist with his treatment and consumption of prescribed medication, he would be sufficiently motivated to improve his mental health. It was also thought that imprisonment would have a significant negative impact on him and probably increase the severity of his depression, especially if he felt unsafe. Dr Cooke records that the applicant appears to accept that he has broken the law and that there are consequences for this. It was also noted that the applicant was aware that he may receive a custodial sentence.
In her report dated 2 August 2010, Dr Witis recorded that the applicant had experienced difficulties obtaining Australian citizenship and had previously spent 9 months in immigration detention. She obtained a history that the applicant had suffered nightmares as a result of that experience. She recorded that his marriage had failed, he was prevented from seeing his daughter, he was unable to cope, lonely and had twice attempted suicide. She regarded him as being generous, hard-working, honest but naive and that leads him to being exploited. She regarded his prognosis as poor and she feared that if he was sentenced it might result in a situation beyond his capacity to handle.
I acknowledge that the applicant does not have an extensive criminal record. There is no evidence that he offended before 2005 or after 2007. Based on the reports of the professionals who have assessed and treated him, the statements from his friends and those that have supervised him while in prison, the applicant appears to be hard-working and a reliable worker. Mr Turcan, his friend and former employer would not hesitate to employ him should he be permitted to remain in Australia. He has used his time in correctional facilities to rehabilitate and educate himself and has expressed remorse and regret at his criminal conduct. The applicant has also suffered mental illness, has sought treatment for it and at least one practitioner has cautiously suggested that with continuing treatment and medication, his mental health will improve. He has not been in breach of any court Orders or conditions of bail. Those circumstances might give some reassurance that the applicant is at low risk of reoffending. Accordingly, some weight should be given in favour of the applicant.
Whether the person was a minor when they began living in Australia and the length of time they have been ordinarily resident
Paragraphs 10.2 and 10.3 require me to consider whether the applicant was a minor when he began living in Australia and the length of time that he had been ordinarily resident before engaging in criminal activity or activity that bears negatively on his character.
The applicant first arrived at the age of 24. Therefore, he did not spend his formative years in Australia. There was no evidence that he has established significant ties to the Australian community which would justify favourable consideration under paragraph 10.2. Having regard to the age he first arrived, this primary consideration weighs in favour of cancelling his visa.
The applicant first arrived in Australia on 1 January 2001 and remained until 22 September 2002. He was in Australia for 21 months in 2001-2002 and during that time, he was in immigration detention for 7 months. He was then deported in 2002 and returned in September 2004. He commenced the criminal activity in 2005 – that is, the activity for which he was eventually charged and convicted. It cannot be said that the applicant’s period of residence in Australia is such to warrant favourable consideration. He was in Australia for a relatively short period of time before he engaged in the criminal activity. The primary consideration in paragraph 10.3 does not weigh in the applicant’s favour.
International obligations
At paragraph 10.4 there is a requirement to have regard to any international obligation if there is a child in Australia affected by a visa cancellation. This paragraph does not apply to the applicant. Anastasia is the only child of the applicant. She is an Australian citizen. Irrespective of the outcome of this review, her status as an Australian citizen remains unaffected.
The remaining part of this paragraph concerns whether there is any non-refoulement obligation under the Refugees Convention. It has no application in these proceedings.
Best interest of the child
Paragraph 10.4.1 provides that the best interests of the child must be considered. The factors encompassed in this primary consideration are significant in this review because the applicant has a daughter, Anastasia, who is under the age of 18. In deciding whether to cancel the applicant’s visa, Anastasia’s best interests must be taken into account. In assessing where her best interests lie, the relevant factors I must consider include, the nature and duration of her relationship with the applicant, including the length of separations; the extent to which the applicant can fulfil a parental role and the existence of others who are fulfilling that role; the likely effect of a separation; the impact of the applicant’s contact on Anastasia; and Court Orders.
The applicant expressed, during the hearing of this review and in his Statement of Facts and Contentions, that he is strongly committed to having a relationship with Anastasia.
I acknowledge that it has been difficult for him to have a relationship with her. I accept that Victoria, her mother, has been protective of her and has frustrated his attempts to have contact with Anastasia. I acknowledge also that the applicant has attempted to secure contact with Anastasia, not by the cooperation of Victoria, but by instituting family law proceedings in the Federal Magistrates Court.
I also acknowledge that the applicant was concerned about Anastasia’s health because it appeared that she developed illnesses which doctors associated with stress and/or anxiety that she experienced as a result of the volatile relationship between her parents.
I note that the applicant exercised his legal rights to maintain a relationship with his daughter. I also note his concerns about her health and well-being. However, I question whether the applicant does have a genuine commitment to have a relationship with Anastasia.
Victoria became pregnant with the applicant’s child before their marriage in March 2003. She returned to Australia shortly before her Ukrainian visa expired. Anastasia was born on 23 July 2003 in Melbourne. Victoria applied to support the applicant as a condition of the issue to him of a spouse visa permitting him to return to Australia. Plans were made for the applicant to return to Australia on or before 23 July 2004 which was the day of Anastasia’s first birthday and her christening. The applicant did not return until 2 September 2004. Accordingly, he saw his daughter for the first time 14 months after her birth.
The applicant explained that he had entered into a contract as a painter in February 2004 for 6 months and was required to complete it. I do accept the applicant’s explanation for the delay. He was advised that his visa was granted on 27 May 2004. In February 2004 his immigration status was uncertain, so it is not unreasonable to enter a six-month employment contract. The contract ended in August 2004 and he returned to Australia in early September 2004. However, when the applicant was advised that his visa had been granted, he could have taken steps to end the contract or find a replacement. There was no evidence that he made any attempts which would have allowed him to arrive in Australia before Anastasia’s first birthday. I am not satisfied that he is devoted to Anastasia and have doubts about the extent of his commitment to her.
In January 2005 the relationship with Victoria had ended and the Department of Immigration and Citizenship (the Department) were notified. In a letter dated 24 January 2005, the Department requested further information from the applicant (Supplementary G-documents, p 65). However, the letter was sent to the address of Victoria's parents and the letter was not passed to him. When he eventually received the letter, more than 28 days had expired. He approached the Department and explained that he had not received it. He said he was told that he would be given more time to consider his rights and was advised that by reason of him being separated, he no longer qualified for a spouse visa. However, he was advised that if he was able to demonstrate that he had custody or access rights with Anastasia, a visa would be issued permitting him to remain in Australia. It was then that he applied for contact Orders.
Prior to his application for a court Order, the contact between the applicant and Anastasia was very limited. He expressed frustration at Victoria’s conduct in refusing him access. If he had a genuine intention to establish a relationship with his daughter, it would have been in his interests to actively encourage Victoria to ensure that Anastasia had the benefit of access and the love of both parents. If he had made such an attempt but it had failed, he could have instituted family law proceedings. It appears that he did neither and only instituted proceedings in the Federal Magistrates Court when he learnt of a basis that would permit him to remain in Australia.
In his closing submissions, the applicant acknowledged that he had lost contact with Anastasia and accepted that it was his fault, in part. He also said that he had neglected her needs. He sought the chance to remain in Australia to prove his intention to offer her love and support.
On the applicant’s evidence, his contact with Anastasia has been very limited. He had access to her under the supervision of Victoria on a few occasions in 2007. He has not had any meaningful contact with her since 2007. He said that he made one telephone call to Anastasia from the Ukraine in 2006 on the occasion of her birthday. He has not contacted her by telephone or by letter at Christmas. On one of his returns to Australia from the Ukraine, he bought her presents from his parents and from him. He carries a photograph of Anastasia which was recently taken by Marina Atzil.
The applicant decided in 2007 that because of the impact the tension between him and Victoria was having on Anastasia, he would stop attempting to have contact with her. In 2009 it was also apparent that he was likely to be sentenced and he preferred to wait until after he was released before he would attempt to restore a relationship with her. Coincidentally, the hearing of this review occurred on Anastasia’s 9th birthday.
I acknowledge that if the applicant’s visa is cancelled, it is unlikely, at least in the immediate future, that he will have any personal contact with Anastasia. I appreciate that every child deserves to have the benefit of ready access or at the very least, contact with both parents. If the applicant is forced to leave Australia, personal contact will be impossible and the only means of communication will be via telephone, written correspondence or electronic media (for example, Skype or Facebook).
Anastasia currently resides with her mother, Victoria. Therefore, she has the benefit of at least one parental figure. It was learnt during the submissions of Mr Brown that Victoria has remarried. In those circumstances, Anastasia has the daily contact of two adult persons. Her husband is of course not Anastasia’s father but the relationship, if it is stable, might well be having a positive impact on Anastasia. Victoria’s current husband may also, in the circumstances, fulfil a parental role.
Anastasia has had very limited contact with the applicant, her father, during her lifetime and since 2007, there has virtually been an absence of any contact between them. On the limited occasions where there was contact, the volatile nature of the relationship between the applicant and Victoria was having a negative impact on Anastasia’s health. There now appears to be another person in Anastasia's life who may be fulfilling a parental role. Without dismissing the desirability of a child being in the care of and enjoying the love of both parents, in the circumstances, I am not satisfied that Anastasia will be adversely affected if the applicant is removed from Australia. I do not believe that her best interests will be compromised if the applicant is no longer a resident.
Convention relating to refugees and other international obligations
The remaining considerations in paragraph 10 of Part B of Direction 41 concern the application of the Convention and Protocol Relating to the Status of Refugees and whether there are any other relevant international obligations that should be considered. Neither of those considerations applies in this review.
Other considerations
The second major paragraph in Part B is paragraph 11 which sets out other considerations that must be taken into account if they are relevant in a particular case. Relevantly, they include, the extent of family and other ties in Australia, the applicant’s age and health, links to the country they will be removed to, hardship likely to be suffered by the applicant and immediate family, level of education and whether the applicant was advised by the Department about the provisions relating to deportation and the character test. The considerations do not attract less weight than those considered in paragraph 10.
The applicant is aged 34 and remains a citizen of the Ukraine. He has frequently returned since he first arrived in Australia in 2001. He is fluent in its language. Both his parents and other family members continue to reside in the Ukraine. His wife Liudmila resides there. Before he first travelled to Australia, he was employed as a painter. He has worked as a painter on occasions when he has returned. He has been employed as a painter and tiler in Australia. In evidence, he was confident about obtaining employment in the Ukraine. The vocational programs completed during his imprisonment are also likely to improve his employment prospects. I am satisfied that he will not have difficulty re-building his life in the Ukraine with the love and support of his family and friends. I am also confident that he will find employment in a trade in which he is experienced.
There is no evidence which would indicate that the applicant would be adversely regarded if he returned to Ukraine or be denied entry. Indeed the frequency of his return visits would indicate otherwise.
Except for some friends of the applicant, he does not have any other effective or ongoing relationship with persons in Australia. His daughter Anastasia will continue to reside in Australia with her mother. She is an Australian citizen. There is nothing which would prohibit her travelling to the Ukraine to visit the applicant when she is older in the event that their relationship can be restored. Anastasia is the only immediate family the applicant has in Australia and as I have found that her interests will not be adversely affected, if her father’s visa is cancelled, it follows that she will not suffer hardship by his removal.
There is no evidence that the applicant has any property in Australia or indeed any other personal or material connection.
The applicant has been diagnosed with major depressive disorder with a co-morbid syndrome of post-traumatic stress disorder and alcohol abuse (G-documents, p 115). According to the assessment of Dr Cooke in 2010, he is vulnerable to stress and his condition may deteriorate if he feels unsafe. She reported that his prognosis will improve with ongoing medication and psychological counselling (G-documents, p 115). There is no evidence that the applicant’s condition has deteriorated while in prison and he confirmed in evidence before the Tribunal that it was under control.
It may be that he will need ongoing psychiatric care. In her report, Dr Witis indicated that the applicant will be denied treatment if he returns to the Ukraine and stated that his psychiatric illness will not allow him to benefit and receive the treatment that he did in Australia (Exhibit A3). I do not place much weight on her opinion. While I accept that the applicant will not receive the treatment that he did in Australia, there is no evidence that medication will be denied. I anticipate that there would be healthcare professionals who would be able to assist and treat the applicant in the Ukraine. In any event, the applicant may not need further medication because he told the Tribunal that he had not consumed Effoxor, which had been prescribed to him, in the last month.
I expect that the reunion with his wife and parents, in his country of origin and the likelihood that he will readily obtain employment, and therefore have an income, will be of considerable emotional benefit or at least ameliorate the consequences of any continuing depressive illness.
I note that the applicant was never warned about the deportation provisions in the Act or the consequences of failing the character test. Therefore, some weight should be placed in his favour. However, on balance, it is difficult to find that any weight should be placed in favour of the applicant on the basis of the other considerations in paragraph 11.
DECISION
Having heard and observed the applicant in evidence and having read the large volume of documents lodged in this review, I have concluded that the decision of the Minister should be affirmed.
For the reasons explained earlier, the weight that should be levied against the applicant because of his criminal conduct is considerable. He was a member of a group of persons who participated in a scheme to defraud financial institutions and mobile telephone service providers. It was planned and executed, unfortunately, with some success. It involved the issue of false identities including false passports. The conduct involved deception on a broad scale over a two-year period. Despite the applicant having had the opportunity to reflect on his conduct when he returned to the Ukraine in 2006, his participation in the scheme resumed when he returned to Australia. The offences were regarded seriously by Judge Duggan and I agree with the comments that he made in his sentencing remarks.
I am not satisfied that the applicant truly understands the significance of his conduct. In his Statement of Facts Contentions at paragraph 2, he has attempted to distinguish the charges of obtaining property by deception from charges of theft. He records that the essence of theft was appropriating property without consent, which could be distinguished from obtaining property with consent by deceptive conduct. He deserves no credit for that pleading. The similarities between the two offences are the taking of property from another, without consent and with the intention of permanent deprivation.
Direction 41 requires an examination of the offences to determine the seriousness and nature of the applicant’s criminal conduct. The applicant did plead guilty to multiple counts of obtaining property by deception and related offences. His conduct was serious. It was deserving of the punishment imposed and it is by reason of him being sentenced for more than 12 months that he has found himself having to justify the setting aside of the decision under review and being permitted to remain in Australia.
Also disturbing, is the applicant’s conduct which commenced within 2 weeks of arriving in Australia. He attempted to mislead the Minister by asserting that he deserved refugee status. His conduct was a well-considered and deliberate fraud which he pursued over a period of 18 months. On the one hand, he attempted to deceive the Minister. His persistent challenge to the refusal to grant him refugee status was also an attempt to deceive specialist Tribunals and the Federal Court. He caused an interference with the orderly management of the business of those institutions. Delay was caused to other applicants who were genuinely seeking review of their immigration status. Only in the first 15 minutes of this review, 11½ years later, did the applicant admit that the claims he then made were bogus.
Whilst there are some features of the applicant’s case that attract credit, they are outweighed by the unacceptable risk of harm he poses to the Australian community. His conduct while in Australia attracts weight of a sufficient magnitude that tips the scales against permitting him to remain in Australia.
The applicant has a substantial criminal record and having regard to his past criminal and general conduct, he is not of good character and does not pass the character test (s 501(2), (6)(a) and 7(c)). Accordingly, in the exercise of my discretion, his visa should be cancelled.
It follows that the decision under review should be affirmed.
I certify that the preceding 93 (ninety -three) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member ............................[sgd]............................
Associate
Dated 3 August 2012
Date(s) of hearing 23 July 2012 Applicant In person Advocate for the Respondent Mr D. Brown Solicitors for the Respondent Australian Government Solicitor
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