Pasquariello and Minister for Immigration and Multicultural and I Ndigenous Affairs
[2003] AATA 965
•26 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 965
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/45
GENERAL ADMINISTRATIVE DIVISION ) Re
Giuseppe Pasquariello
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley Date26 September 2003
PlaceCanberra
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Angela Pasquariello.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 spouse (provisional) visa – secondary applications for Visa Applicant’s children - character test – Visa Applicant refused visa on the basis of past and present general conduct – examination of the Visa Applicant’s immigration history – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against the hardship to the Application – held decision of the Respondent set aside – discretion not to refuse the grant of a visa should be exercised in favour of Visa Applicant.
Migration Act 1958 – ss 499, 501, 501(6)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Ly and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 435.Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
26 September 2003 Mr RP Handley 1. This is an application by Giuseppe Pasquariello (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 20 December 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant’s spouse, Angela Pasquariello (“the Visa Applicant”). [The decision also refused the applications of the Visa Applicant’s dependants, Anton Syzonov and Kirill Syzonov.]
2. At the hearing, the Applicant was represented by Jim O’Brien, Migration Agent and the Respondent was represented by Jim Neely, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the evidence tendered by the parties at the hearing. The Applicant gave evidence in person and the Visa Applicant gave evidence by conference telephone from the Ukraine.
Background
3. The Applicant, Giuseppe Pasquariello, was born in Gesualdo Avellion, Italy, on 1 June 1947 and is aged 56. Mr Pasquariello came to Australia on 8 May 1965 and was granted Australian citizenship on 27 August 1975 (T p103).
4. On 25 March 1966, Mr Pasquariello married his first wife, Darinka Abramovic. That relationship ended in divorce on 25 August 1974 (T p193). They had two children: Michael Ballat, born 28 December 1968, who is now aged 34, and Gules Ballat, born 27 October 1972, who is now aged 30 (T p194). Mr Pasquariello married his second wife, Patricia Helen Gaudry, on 4 December 1976. They were divorced on 4 April 1999 (T p104). Three children were born of that relationship, David Pasquariello, born 17 October 1977, who is now aged 25, Linda Pasquariello, born 13 November 1980, who is now aged 22, and Sara Pasquariello, born on 10 July 1982, who is now aged 21.
5. The Visa Applicant, Angela Pasquariello, was born in Pervomajsk, Ukraine, on 14 August 1965 and is aged 38 (T p189). On 8 May 1985, Ms Pasquariello married her first husband, Gennadi Syzonov. They were divorced on 14 November 1991. Two children were born of that relatiohship, Anton Syzonov, born 21 December 1985, who is now aged 17, and Kirill Syzonov, born 7 December 1987, who is now aged 15. Between 24 January 1992 and 1 October 1999, Ms Pasquariello lived in a de facto relationship with Valeri Ivanov (T p190). One child was born of that relationship, Daniel Ivanov, born 8 May 1996, who is now aged seven. Ms Pasquariello also married Stanislaw Buchkin in 1996 in order to obtain Russian citizenship. They were divorced on 26 May 1997, having never lived together.
6. On 11 April 2000, Ms Pasquariello arrived in Australia on a subclass 456 business short-stay visa, granted on 16 March 2000 (T p46), valid for a period of three months. On 15 April 2000, she met Mr Pasquariello in Dickson, Canberra. They commenced their relationship on 16 April 2000 (T p195) and began living together shortly thereafter (T p160). On 6 June 2000, Ms Pasquariello departed Australia. She is currently living in Moscow with her children Anton and Kirill. Against her will, Mr Ivanov has taken their son Daniel to live with him in Khazakstan.
7. On 19 June 2000, Ms Pasquariello lodged an application for a subclass 300 prospective marriage visa at the Australian Embassy in Moscow (T p62). She was interviewed by a Senior Migration Officer at the Embassy on 6 August 2001 (T p132).
8. On 27 September 2001, Mr and Ms Pasquariello were married in Moscow (T p336).
9. On 5 October 2001, a delegate of the Respondent refused Ms Pasquariello’s application for a prospective marriage visa on the ground that the delegate was not satisfied that the Applicant and Visa Applicant intended a continuing marital relationship (T p168). On 25 October 2001, Ms Pasquariello applied for a tourist visa, which was refused on 25 October 2001 (T p185).
10. On 10 June 2002, Ms Pasquariello lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Moscow (T15 p187). On 17 September 2002, she was informed of the Respondent’s intention to refuse her application and provided with the opportunity to comment (T22 p364). Ms Pasquariello was interviewed at the Embassy by a Senior Migration Officer on 22 October 2002 (T26 p372) and 2 December 2002 (T p379).
11. On 20 December 2002, a delegate of the Respondent decided to refuse the grant of a visa to Ms Pasquariello on the basis that she did not pass the character test because of her past and present general conduct and having elected not to exercise the discretion permitted under the legislation (T2 p8). The delegate also refused the applications of Ms Pasquariello’s dependents, Anton Syzonov and Kirill Syzonov.
12. On 7 February 2003, Mr Pasquariello lodged an application for a review of the decision by the Tribunal.
Applicable Legislation
13. Under s 501(1) of the Act, 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. The character test is set out in s 501(6), and provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c) (ii), that “having regard to the person’s past and present general conduct … the person is not of good character”..
14. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
15. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
16. The issue for the Tribunal to determine in this case is, therefore, whether Ms Pasquariello is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a subclass 309 (provisional) visa. If the Tribunal decides she is not of good character, it must consider whether to exercise the residual discretion under s 501(1) to not refuse the grant of a visa.
Evidence
Guiseppe Pasquariello (the Applicant)
17. Mr Pasquariello provided a statement dated 4 September 2003 (A1). He said he was introduced to Ms Pasquariello (“Angela”) by a friend, Allen Arnold. He and Mr Arnold are business acquaintances who have known each other for 17 years. About five years ago, Mr Arnold married Olga Turenko who is from St Petersburg, and whom he met at a minerals show in Germany. Mr Pasquariello complimented Mr Arnold on his wife and jokingly said he would like to meet someone as beautiful as Olga. Mr Pasquariello said he meant this only as a compliment. Although Mr Pasquariello had been single for a few years at this time, he had never discussed personal matters with Mr Arnold. Mr Pasquariello strongly denied that he told Mr Arnold he was looking for a wife or that Mr Arnold told him he had a friend who wanted to come to Australia.
18. Through attending mineral shows in different locations, Olga had also come to know Angela. Olga invited Angela to visit her and Mr Arnold in Australia and to attend a minerals exhibition.
19. Mr Arnold phoned Mr Pasquariello and asked him to join them for dinner at the Eldorado Restaurant in Dickson on 15 April 2000. Mr Arnold told him merely that Olga had a friend from Russia staying. Mr Pasquariello was not otherwise aware of Angela’s existence and he vehemently denied that any meeting had been planned before Angela came to Australia. He did not know she had come to Australia to attend a minerals exhibition.
20. Mr Pasquariello said that at dinner he did not ask Angela why she had come to Australia, nor how she had come to know Olga. She did not tell him about the minerals she had brought to Australia or about attending the minerals exhibition. They did not discuss what she did for a living. They just chatted over dinner. After dinner, Mr Pasquariello suggested that they go to the Italian Club for coffee. There, he and Angela danced together and they told each other their life stories. Mr Pasquariello said by the end of the evening he knew he wanted to marry Angela. Mr Pasquariello was referred to Statutory Declarations by Charles De Angelis (T16 p232), Mr Pasquariello’s sister Maria Anastasi (T16 p233), and John Cadona (T16 p235) whom he told in April 2000 that Angela was the person he was going to marry.
21. Mr Pasquariello said at the time she came to Australia, Angela was single and living with her friend, Irina Medvedskaya, in Moscow. He later learned of how, until nine months before, she had been in a de facto relationship with Mr Ivanov and of how she had entered into a second marriage in order to obtain Russian citizenship. When she explained her situation, he understood the reasons for what had occurred.
22. Mr Pasquariello said before Angela left Australia they had agreed to marry although he did not propose to her formally until 14 August 2000 when they were in Thailand. Mr Pasquariello said he is a passionate man and that he made up his mind to marry Angela very quickly. He will live with her for the rest of his life whether in Australia or Russia.
23. Mr Pasquariello said Angela did not work while she was in Australia. She never went to the minerals exhibition. Instead, she left her minerals with her friend to sell, and decided to spend the time with Mr Pasquariello. He said he did not think there was any requirement for her to inform the Department if she stayed in Australia for more than 14 days. Her visa permitted her to stay for three months.
24. Mr Pasquariello said since Angela returned to Moscow he has bought her a two bedroom apartment there at a cost of US$32,000. She is living in the apartment with her two sons. He sends money to Moscow to support her and her sons, as required, for example US$1,000. Angela also now has a part-time job in a clothes business. Her oldest son Anton, who will be 18 in December 2003, is now at university studying photography. Her second son, Kirill, who will be 16 in December 2003, has nine months to go at school to finish the equivalent of Year 12. Angela and the two boys are currently staying with her parents in the Ukraine during the school holidays.
25. Mr Pasquariello said if his wife’s spouse visa application is refused, it will be disastrous for him. He does not want to live in Russia because of the language difficulties and he has been away from Italy for too long to want to live there. All his family are in Australia. His parents are buried here. He has three sisters and one brother here. He has five children and two grandchildren here. Australia is his home and where he wants to live.
26. Mr Pasquariello has sold his house in Turner and is currently living with his sister in Higgins while his wife’s visa application is being determined. He owns property in Canberra worth about $1M: a share, with partners, in warehouses at 158 and 162 Gladstone Street, Fyshwick and a property at Mitchell. He also has some NRMA shares, a share in the Italian Club valued at about $10,000, and a coin collection.
27. Mr Pasquariello said he is aware that when Angela lodged her prospective spouse visa application, she made misrepresentations and submitted false documents. He is also aware that her former de facto, Mr Ivanov, whom he has never met, is trying to stop her getting a visa – because of jealousy. Mr Ivanov has said that if he cannot have Angela, no one else can. He submitted false documents to the Australian Embassy. Mr Ivanov bashed Angela and then kidnapped Angela’s youngest son, Daniel, from her parents’ house. He then failed to honour an agreement with Angela whereby she gave him her share of the house and business if he returned Daniel to her. He did not do so.
28. Mr Pasquariello said he loves his wife and this business is tearing him apart. What she did in Russia, she did to survive. He agreed that she made a mistake but she told the truth to the staff at the Australian Embassy in Moscow. When the Embassy told her the police certificate she had obtained was false – which she denied – he went with her, in early 2003, to a town about 100kms out of Moscow to obtain another certificate. They left early in the morning and travelled by bus. They went to the Administration office where Angela showed an officer the original certificate. The officer said the certificate was genuine. They asked him for written confirmation of this and he offered to issue a second certificate. A secretary took his dictation by shorthand and typed the certificate, which the officer signed. Mr Pasquariello said they were at the office for about 45 minutes.
Angela Pasquariello (the Visa Applicant)
29. Ms Pasquariello said she travelled to Australia on a business visitor visa intending to attend a minerals exhibition. She had received an invitation from her friend Olga and Olga’s husband, Allen Arnold, in Canberra. At that time, Ms Pasquariello was still dealing in minerals and had recently attended a minerals exhibition in Germany. Even though she had separated from Mr Ivanov and was no longer in business with him, she was able to sell minerals from her own collection in Germany. When she came to Australia, she brought about 10kgs of minerals with her.
30. Ms Pasquariello said she borrowed about US$1,000 to pay for her return airfare to Australia. She was aware that Olga had married an Australian and Olga, whom she used to meet at minerals shows, was aware that she had separated from Mr Ivanov and that they were no longer working together. Ms Pasquariello said she thought Olga invited her to attend the minerals exhibition in Australia because Olga was trying to help with her work in the minerals business. Olga told her that she liked it in Australia but never offered to introduce her to an Australian man. The purpose was not to enable Ms Pasquariello to meet someone in Australia and commence a relationship. If that had been the case, she would have arranged to stay longer than two weeks. Olga never mentioned her husband’s friend, Mr Pasquariello to her. The first she knew of Mr Pasquariello was when she learned that Olga and Allen were taking her out to dinner at a restaurant and that Olga’s husband’s friend would be joining them.
31. Ms Pasquariello said she had planned to return to Moscow after two weeks in Australia but, after she met Mr Pasquariello, she decided to stay longer and changed the date for her return flight. Olga and Allen offered to take her minerals to the exhibition and try and sell them for her so that she could spend time with Mr Pasquariello. In fact, Olga was only able to sell a few at the exhibition and Ms Pasquariello realised that not many people in Australia are interested in minerals. Ms Pasquariello left the rest of the minerals with Olga when Ms Pasquariello returned to Moscow. Olga sold a few more subsequently but the total sales amounted to only about US$500. Mr Pasquariello brought the remaining minerals back to her on a later visit.
32. Ms Pasquariello said she did not work in Australia and returned to Russia before the expiry of her visa. When she obtained the visa, she was not told that she needed to tell the Department if she decided not to attend the minerals exhibition. She never had any intention of trying to remain in Australia permanently..
33. Ms Pasquariello said she was not asked to declare her minerals on entry into Australia. They were not precious stones and she did not think she had to declare them. On arrival, her suitcase was lost. She reported the lost suitcase, stating its contents, including the minerals. When the suitcase was later found and Customs checked the contents, they did not say anything about the minerals.
34. Ms Pasquariello said the purpose of the dinner at the restaurant was to celebrate her arrival in Australia. She denied that it was arranged to enable her to meet Mr Pasquariello, although she acknowledged that, at the dinner, Mr Arnold spoke highly of Mr Pasquariello and said they were in similar businesses. After dinner, Mr Pasquariello suggested that they go to the Italian Club. During the course of the evening, she and Mr Pasquariello told each other about their backgrounds and children and she learned that he collected coins. The next day, she and Mr Pasquariello drove to the coast together.
35. Ms Pasquariello was asked about the certificate from Gorizont dated 15 March 2000 (R1) submitted with her business visa application. She admitted that she had prepared the documents, the contents of which were true to the extent that she had worked as a gemologist for Gorizont, although she had forged the signatures on the document. As a precedent, she used an old certificate from when she travelled previously to Germany. Ms Pasquariello did not want to approach Mr Ivanov for a certificate because of the breakdown of their relationship. She had not needed such a certificate when she travelled to Germany in November 1999. On that occasion, she approached a travel agency who made all the arrangements for her including obtaining a visa. She did not realise the importance of the certificate and would not have forged this had she realised. She apologised. She acknowledged that, at the time, she was no longer working for Gorizont, having separated from Mr Ivanov, but was working in a clothes shop.
36. Ms Pasquariello said after she separated from Mr Ivanov, in November 1999, she went to Germany for two weeks when Mr Ivanov came to Moscow. At the end, their relationship was very bad, he was violent, and she had to leave home and hide. She attended minerals shows and was able to sell some minerals, but she also went for a break. While she was away, Daniel was being cared for in the Ukraine by her mother. But Mr Ivanov went to her parents’ house and “kidnapped” Daniel whom he took to Khazakstan (R5). When Ms Pasquariello returned from Germany, she lived at her friend, Irina’s house in Odintsovo, because she was afraid of Mr Ivanov finding her. Her children lived with her mother at her and Mr Ivanov’s house. She would visit them every two days or so.
37. Ms Pasquariello said in October 1999, prior to going to Germany, she applied for a US visa. She saw an advertisement for a English language school in San Francisco and applied to study English there, hoping she would also be able to sell minerals. It was also a way of getting away for a few months in case Mr Ivanov should find her and beat her up again. Her parents approved and offered to look after her children while she was away. But she was unable to raise the money and her visa was refused. In Russia, everybody thinks that if an Embassy refuses a person a visa, then other Embassies will follow suit. Ms Pasquariello therefore tried to conceal the US Embassy “passport seen” stamp in her passport by placing a Turkish visa over it. She explained this to the Migration Officer in her interview at the Australian Embassy.
38. Ms Pasquariello said a person must be a Russian citizen and have a registered address in the Moscow region in order to purchase a unit in Moscow and send children to school there. Ms Pasquariello met Mr Ivanov in 1993 but maintained a registered address in the Ukraine until 1996. In 1996, Mr Ivanov suggested she enter into a contrived marriage to acquire Russian citizenship. He therefore arranged for her to marry Mr Buchkin on paying him US$1,000. This enabled them to buy a house in her name and the children to go to school there. Ms Pasquariello said she wanted Russian citizenship but did not like this way of acquiring it, even though she does not think entering into a contrived marriage is an offence in Russian law.
39. Ms Pasquariello said between September 1999 and January 2000, after she had separated from Mr Ivanov, she only phoned him once in order to speak to her son, in about November 1999. She next phoned him in about November 2000, after he left messages with her friends asking her to contact him. They arranged to meet in January 2001 to discuss the sale of their house. She offered to relinquish her rights to the house if he would return Daniel to her. Mr Ivanov insisted that if he did this, Ms Pasquariello would have to live in Moscow so that he could have contact with Daniel. Finally, Mr Ivanov agreed to get his de facto wife in Khazakstan to bring Daniel to Moscow while the house was being sold. But he never did so. Ms Pasquariello said she changed her registered address from the house in March 2001 when the house was sold.
40. Ms Pasquariello said, at this time, Mr Ivanov asked her to resume their relationship but she refused. She never discussed her relationship with Mr Pasquariello with him but he must have found out because he wrote letters to the Australian Embassy. He is trying to stop her getting a visa. Ms Pasquariello was asked about a statement by Mr Ivanov dated 22 February 2001 (S3) by which he certifies she bears him no obligations. Ms Pasquariello said it was Mr Ivanov’s idea to prepare a statement which she sent to the Australian Embassy.
41. Ms Pasquariello was asked about the statement she had lodged with her prospective spouse visa application from her first husband, Gennady Syzonov, dated 14 June 2000 (T7 p106), giving his consent to their children’s permanent residence in Australia with their mother. Ms Pasquariello had previously acknowledged this statement to have been a fraudulent document even though she said it was correct in fact. She had approached her ex-husband for a similar statement before, when she wanted to take their children on holidays overseas, while not objecting to her doing so, he was reluctant to arrange for the preparation of the statement and the payment of the necessary fees. Although she knew he would consent, she did not want to have to ask him to provide another statement. She was in a hurry to lodge her visa application and did not want to wait. This was her biggest mistake.
42. Ms Pasquariello was asked about the certificate confirming her residence in the town of Orekhovo-Zuyevo (T7 p122). She said this is a genuine certificate which she obtained personally. She went to the administration office. It was the lunch break and she was asked to wait. Then she was introduced to Mr Ivanov and he said he would organise the certificate for her. He asked her a few questions - for example, at what address she was registered and whether she lived at that address. Then, he prepared the document and went away to have it signed by his superior and stamped. She could not understand why Lieutenant Colonel Kudinov subsequently claimed it to be forged. After the migration officer at the Australian Embassy told her of this at the interview on 2 December 2002 (T p379), she and Mr Pasquariello, who was in Moscow at the time, went to the town administration office. She asked the officer to confirm that the certificate was genuine. He examined the certificate, said it was genuine, and then prepared and issued a second certificate (A2). He said he would contact the militia and find out how the mistake had occurred.
43. Ms Pasquariello said her relationship with Mr Pasquariello is a genuine and loving one. They will live together regardless of whether she gets a visa. The hearing is more for Mr Pasquariello – to try and prevent him having to leave his country.
Submissions
Applicant
44. Mr O’Brien, for the Applicant, contended that Mr and Ms Pasquariello have a genuine marital relationship. This is apparent from Mr Pasquariello’s conduct over the past three years and the time he has spent and expense he has incurred to be with his wife, and in trying to get her a visa for Australia.
45. There were no false documents included with Ms Pasquariello’s spouse visa application lodged in June 2002. Ms Pasquariello lives in a country where corruption is rife. Her former actions were consistent with those of ordinary Russians who have to survive by a combination of hard work, guile and sometimes deception. Ms Pasquariello has expressed contrition at her previous conduct since the refusal of her prospective marriage visa application in 2001 when she realised the seriousness of her actions. She has been open and frank with the Respondent in admitting her mistakes and apologising for them.
46. Mr O’Brien said there is no evidence that Ms Pasquariello intended to visit Australia other than to attend a minerals exhibition. She continues to have an interest in gemology, in which she is trained and experienced.
47. Mr O’Brien refuted the allegation that Ms Pasquariello had presented a forged police certificate. Ms Pasquariello’s and Mr Pasquariello’s evidence of how they obtained a second confirmatory certificate attests to this.
48. Mr O’Brien submitted that Ms Pasquariello passes the character test pursuant to the Federal Court’s exposition of the concept of good character in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at paragraph 8. Were the Tribunal not to find this, the discretion in s 501(1) should be exercised in Ms Pasquariello’s favour. In particular, Mr O’Brien asked that Mr Pasquariello’s situation be considered. He has lived in Australia since 1965. His parents are buried here; his five children and two grandchildren live here and he has deep roots in Australia. He has a business and capital invested in Canberra, creating employment. If he is forced to leave Australia, he will take that with him to the detriment of the community.
Respondent
49. Mr Neely, for the Respondent, contended that Ms Pasquariello’s explanation for coming to Australia to attend a minerals exhibition is not credible. She was not working with minerals at the time – she was working in a clothes shop. Moreover, the quantity of minerals she brought with her did not support her having a business objective. He noted that Mr Arnold had not been called to give evidence. Mr Neely suggested there had been a ruse to bring Ms Pasquariello to Australia to meet Mr Pasquariello. Mr Neely questioned whether Ms Pasquariello brought any minerals with her to Australia at all.
50. Mr Neely pointed to the forged documents which Ms Pasquariello submitted with her prospective spouse visa application, the Turkish visa stamp placed over the US “passport seen” in her passport, and the residence certificate which Lieutenant Colonel Kudinov claims to be false. He submitted that the Tribunal should give no weight to the residence certificate tendered by the Applicant at the hearing (A2) which Ms and Mr Pasquariello obtained to authenticate the certificate issued from the office of Colonel Kudinov because the second certificate did not originate from the same office and, YK Baronoff did not have the authority to issue such a certificate. Mr Neely noted also that Ms Pasquariello had entered into a contrived marriage to obtain Russian citizenship, thereby deceiving the Russian authorities. He also suggested that Ms Pasquariello’s evidence as to her relationship with Mr Ivanov and in relationship to the custody of their child Daniel was implausible.
51. Mr Neely said Ms Pasquariello is a sophisticated person who has travelled widely. The evidence suggests she engaged in fraudulent and deceptive conduct to achieve her ends. She showed a contempt and disregard for Australia’s migration laws. Mr Neely emphasised the importance of observing the truth in migration matters (Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148) and noted that cultural considerations “provide no excuse for deliberate falsehoods” (Re Ly and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 435).
52. Mr Neely submitted that Ms Pasquariello fails the character test by reason of her general conduct. Furthermore, the discretion in s 501(1) should not be exercised in her favour. She committed serious misconduct by making false statements, submitting bogus documents, and deceiving the authorities in Russia. Given her history, there is a likelihood that she will repeat such misconduct if it is to her advantage. To refuse her a visa would send a strong message to others, and the Australian community would expect that her application for a visa would be refused. With regard to the best interests of her children, Mr Neely noted that if Ms Pasquariello came to Australia, she would separated by a great distance from her son Daniel whose interests would, therefore, be adversely affected by the grant of a visa.
53. With regard to other considerations, Mr Neely questioned the genuineness of the marriage. He suggested the Tribunal should be sceptical about Ms Pasquariello’s motives, especially in view of her misleading and deceptive conduct. He noted Mr Pasquariello was aware that Ms Pasquariello was “of character concern” before they married.
Application of the Law and Findings
54. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Pasquariello passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full 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. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry …
55. In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).
56. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Pasquariello, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
57. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, when relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law, including breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
58. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. Ms Pasquariello commenced a de facto relationship with Mr Ivanor in January 1992 and they entered into business together dealing in minerals and gems under the name Gorizont based in Moscow. Ms Pasquariello had been educated as a geologist (T p357). In 1996, Ms Pasquariello entered into a contrived marriage with Stanislav Buchkin to enable her to acquire Russian citizenship. This was arranged by Mr Ivanor on payment of US$1,000. As a Russian citizen, Ms Pasquariello was then able to purchase a house in Moscow and to enrol her children in school there. Her marriage to Mr Buchkin ended by divorce on 26 May 1997 (T7 p116).
59. Ms Pasquariello’s relationship with Mr Ivanov broke down in 1999 and ended in late September 1999 (T10 p141). Written statements from Ms Pasquariello’s mother, Shevchenko Zinaida (T16 p306), and her friend, Irina Medvedskaya (T16 p310) support Ms Pasquariello’s claim that Mr Ivanov became violent towards her and made threats against her life. Her mother supports Ms Pasquariello’s claim that Mr Ivanov forcibly removed their son Daniel from her mother’s care and took him to Khazakstan where he is apparently still living with Mr Ivanov and his de facto.
60. After Ms Pasquariello left Mr Ivanov, she went to stay with her friend Irina Medvedskaya. Ms Pasquariello applied for a US visa in October 1999 to study and work in the US which was refused. Ms Pasquariello acknowledges placing a Turkish visa stamp over the US Embassy “passport seen” stamp to disguise the fact that she was not granted a visa.
61. In November 1999, Ms Pasquariello went to Germany for two weeks to attend a minerals exhibition and “for a break”.. It was while she was away that Mr Ivanov removed their son Daniel from her mother’s care and took him to Khazakstan. Ms Pasquariello’s two other children were cared for by her sister and her sister’s partner at the house owned by Ms Pasquariello and Mr Ivanov where the children remained until October 2000 when they went to the Ukraine to be with Ms Pasquariello’s parents.
62. On her return from Germany, Ms Pasquariello stayed once again with her friend Irina Medvedskaya. She worked in the clothes shop where Irina’s husband, Igor, is the director and where she had previously worked casually.
63. In March 2000, Ms Pasquariello received an invitation from Allen Arnold of “Minerals and Gems”, a business based in Canberra, to attend “the main mineral show in Australia” to be held on the Easter weekend of 21 April 2000 – 24 April 2000 (T5 p50). Mr Arnold had met Ms Pasquariello at a minerals show in Germany in 1998. Mr Arnold married Olga Turenko, a Russian friend of Ms Pasquariello’s, whom she used to meet at minerals show. Ms Turenko had subsequently migrated to Australia as Mr Arnold’s spouse.
64. On 16 March 2000, Ms Pasquariello applied for a business visitor visa at the Australian Embassy in Moscow for the purpose of attending the minerals show. She stated that she proposed to stay in Australia for 14 days. With that application, she submitted a certificate purportedly issued by Gorizont stating that she had been employed as a consultant gemologist from 1 December 1996 (R1). Ms Pasquariello has acknowledged that she forged the signatures on this certificate – those of Mr Ivanov and the Chief Accountant. However, she maintained and the Tribunal accepts that it had been her intention to attend the minerals show with a view to selling the minerals she brought with her from Russia. Even though she was no longer working for Gorizont at that time, she was still interested in the business of selling minerals. Ms Pasquariello was issued with a business visitor visa on 16 March 2000. It permitted her to stay in Australia for three months (T7 p86). Ms Pasquariello arrived in Australia on 11 April 2000. The Tribunal accepts her evidence that she brought with her approximately 10 kgs of minerals. The Tribunal is not satisfied that she failed to declare the minerals on entry, as the Respondent contends. Ms Pasquariello’s evidence is that her luggage was lost initially and that she had to state its contents when notifying that loss. Subsequently, when her luggage was located, it was searched by Customs and no questions were asked about the minerals.
65. On 15 April 2000, while staying with her friends Olga and Allen Arnold in Canberra, Ms Pasquariello accompanied them to dinner at a restaurant in Dickson where she met Mr Pasquariello. After dinner, at Mr Pasquariello’s invitation, they went to the Italian Club where Mr Pasquariello and Ms Pasquariello danced. Mr Pasquariello stated that by the end of the evening, he had decided that this was the woman he wanted to marry.
66. The Tribunal rejects the Respondent’s contention that the meeting between Ms Pasquariello and Mr Pasquariello had been pre-arranged between them, or that Ms Pasquariello’s objective in coming to Australia was to find an Australian husband which would enable her to apply to migrate to Australia. There is no evidence of this. Nor is there any evidence that Mr Pasquariello asked his friend Mr Arnold to find him an attractive Russian bride.
67. The Tribunal accepts Ms Pasquariello’s evidence that she intended to come to Australia for about 14 days and only extended her stay after meeting Mr Pasquariello and when the Arnolds offered to take the minerals she had brought with her to the Easter minerals show. The Tribunal accepts that Ms Pasquariello did not breach the terms of her visa and notes that she departed Australia on 6 June 2000 (T7 p86). In the meantime, she had been living with Mr Pasquariello and they had discussed marriage, although Mr Pasquariello said he did not formally propose to her until 14 August 2000 when they were together in Thailand.
68. On 19 June 2000, Ms Pasquariello lodged an application for a prospective marriage visa at the Australian Embassy in Moscow. Ms Pasquariello acknowledges that with her application she submitted a bogus document from her former husband, Gennady Syzonov dated 14 June 2000 (T7 p106). She stated in evidence that she did this in order to avoid having to get him to arrange for the issue of the certificate, knowing that he would consent. Ms Pasquariello subsequently submitted a genuine certificate from Mr Syzonov with her spouse visa application (T16 p317). At her interview at the Australian Embassy in Moscow on 6 August 2001, Ms Pasquariello at first denied that the certificate of 14 June 2000 was false but when it was put to her that the document was fraudulent, she admitted this (T10 p155).
69. At the interview on 6 August 2001, Ms Pasquariello did not hesitate in stating that her marriage to Mr Buchkin was contrived purely for the purpose of enabling her to obtain Russian citizenship (T10 p135). She also freely admitted to having stuck a Turkish visa stamp over the US Embassy “passport seen” stamp (T10 p157), and to the forged certificate submitted with her business visitor visa application (T10 p152).
70. On 27 September 2001, Mr and Ms Pasquariello were married in Moscow. The Tribunal rejects the Respondent’s contention that they do not have a genuine marital relationship. There is no evidence of this. Indeed, the evidence points to a strong bond which has lead Mr Pasquariello to make significant efforts to assist his wife in obtaining a visa for Australia and, in the meanwhile, has lead to his spending lengthy periods with her outside Australia. He also provides her with financial support and has paid for her purchase of a two bedroom flat in Moscow where Ms Pasquariello and her two older sons are currently living.
71. On 10 June 2002, Ms Pasquariello applied for a subclass 309 spouse (provisional) visa at the Australian Embassy in Moscow. She was interviewed at the Embassy in relation to her application on 22 October 2002 and 2 December 2002. The Respondent contends that a residence certificate dated 15 June 2001 (T7 p122) submitted to the Embassy was forged. When this was put to Ms Pasquariello at the interview on 2 December 2002, she denied this (T28 p379), saying she had personally obtained the certificate. At the hearing, both she and Mr Pasquariello gave evidence of how they went to the Administration office for the town of Orekhovo-Zuyevo in January 2003 to check the authenticity of the certificate, and were issued with a second certificate dated 14 January 2003 (A2).
72. Mr Neely contended that no weight should be given to this certificate as it was not obtained from the State Militia office where the first certificate was issued, but from the office of Administration (which is controlled by the Local Ministry of Interior) and that the person who issued the certificate, YK Baranoff, did not have the authority to do so. He said that the Respondent has been unable to seek evidence from Lieutenant Colonel Kudinov as to why he considers the certificate to be false because of the Colonel’s prolonged absence from his office. The Tribunal finds, on the basis of the conflicting evidence before it as to the origin of the second certificate, and the authority under which it was issued, that it is not able to make a finding on whether the residence certificate as submitted with the prospective visa and spouse visa applications was genuine or not.
73. The above findings as to Ms Pasquariello entering into a contrived marriage in order to acquire Russian citizenship; lodging a bogus document with both her business visitor visa application (forged document from Gorizont (R1)) and her prospective spouse visa application (forged document from Mr Syzonov (T7 p106)); and seeking to conceal a US Embassy “passport seen” stamp in her passport, are sufficient to warrant a finding that Ms Pasquariello does not pass the character test by reason of her past and present general conduct.
74. Having decided that Ms Pasquariello does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Ms Pasquariello. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
75. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
76. With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
77. Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
78. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”.. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
79. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
80. With regard to the first of the primary considerations, the Tribunal has found that Ms Pasquariello submitted two bogus documents in support of visa applications. Pursuant to para 2.6(c) of Direction No 21, the “presenting of false or forged documents or making a false or misleading statement in connection with entry or stay in Australia” are regarded as very serious offences.
81. Ms Pasquariello explained the first bogus document, the certificate from Gorizont as to her employment, by reason of her separation from Mr Ivanov; and the second bogus document, the certificate from her former husband, Mr Syzanov, by reason of the difficulty of getting him to arrange for the issue of such a document. Ms Pasquariello has apologised for her misconduct and, in the Tribunal’s view, the likelihood of her repeating such misconduct is minimal given the difficulties that have ensued for her. While the Tribunal recognises that the refusal of a visa in the case of immigration misconduct has a deterrent effect on others who may be contemplating similar misconduct, this is in itself not a conclusive factor.
82. Turning to the second of the primary considerations, the expectations of the Australian community, in the Tribunal’s opinion, the Australian community would take a humane view of Ms Pasquariello’s and Mr Pasquariello’s situation (Re Leha and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1054) and have regard to the other relevant considerations, discussed below.
83. The third primary consideration is the best interests of the child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan (supra) at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
84. Ms Pasquariello has three children. Her youngest child, Daniel, who is aged seven, is currently living with his father, Mr Ivanov, and Mr Ivanov’s de facto in Khazakstan. Ms Pasquariello’s attempts to secure Daniel’s return, after he was taken without consent by Mr Ivanov from Ms Pasquariello’s parents’ home in the Ukraine, have proved unsuccessful. Ms Pasquariello has now been separated from Daniel for a year and nine months.
85. Ms Pasquariello’s two older sons, Anton, who will be 18 on 21 December 2003, and Kirill, who will be 16 on 7 December 2003, are currently living with Ms Pasquariello in Moscow. Anton is now attending University. Ms Pasquariello’s evidence is that their father, Mr Syzanov, shows little interest in them and that he has consented to their accompanying their mother to live in Australia. Mr Pasquariello is assisting with their financial support and states he will continue to do so and will make them a part of his family.
86. In the Tribunal’s view, the best interests of Ms Pasquariello’s children are not, in this particular case, a paramount concern. By virtue of their age and the continuing support of their mother, they are unlikely to be adversely affected whatever the outcome of their mother’s visa application.
87. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
88. The Tribunal has already stated above that in its view the relationship between Ms Pasquariello and Mr Pasquariello is a genuine marital one. It seems that Mr Pasquariello was not aware of the bogus documents Ms Pasquariello submitted with her prospective spouse visa application in June 2000. However, he would have been aware of these at least by the time of Ms Pasquariello’s interview with the Australian Embassy in Moscow on 6 August 2001 and before their marriage on 27 September 2001. Nevertheless, it is clear that, by this time, there was a strong commitment to marriage by both parties. Indeed, Mr Pasquariello stated that he decided he wanted to marry Ms Pasquariello shortly after their meeting in Canberra.
89. The Tribunal finds that the current situation is causing hardship to both Mr and Ms Pasquariello. Mr Pasquariello has travelled to Moscow on a number of occasions and has spent lengthy periods with his wife outside Australia at considerable financial cost. He has purchased a flat for Ms Pasquariello in Moscow for US$32,000 and is assisting with her financial support and that of her two sons. The Tribunal finds this has been disruptive of his construction business in Canberra. He has stated his willingness to sell his assets in Australia and move overseas if his wife’s visa application is refused to enable them to live together. He is, however, very reluctant to do so and is emotional at the thought of the consequences: he has five adult children and two grandchildren in Australia, his parents are buried here and his life since 1965 has been in Australia, to which he is strongly committed; if he were to leave, it would mean an end to his business activities in Australia.
90. The Tribunal notes that since Ms Pasquariello realised the seriousness of her misconduct, she has been open and frank with the Department and that there was no misconduct associated with the current spouse visa application. Ms Pasquariello expressed her regret and apologised for her misconduct.
91. Weighing up the primary and other considerations, in the Tribunal’s view, Ms Pasquariello is of no risk to the Australian community which would expect that her situation and that of Mr Pasquariello should be viewed humanely, especially in the light of the other considerations referred to above.
92. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Act should be exercised in Ms Pasquariello’s favour.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley
Signed: .......................................................................................
AssociateDate/s of Hearing 18 and 19 August 2003 and
16 September 2003
Date of Decision 26 September 2003
Representative for the Applicant Mr J O'Brien, Migration Agent
Representative for the Respondent Mr J Neely, Solicitor
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