Pereyra and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 685

DECISION AND REASONS FOR DECISION [2002] AATA 685

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/120

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Leonardo Pereyra
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date14 August 2002
PlaceSydney

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 Monica Lucia Serna Gomez.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – spouse provisional visa – immigration malpractice – character test – whether the Visa Applicant passes the character test – examination of the Visa Applicant's immigration malpractice – held that the Visa Applicant fails the character test on her past and present conduct – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the hardship to the Applicant and the mitigating circumstances of the Visa Applicant's conduct against the expectations of the Australian community – held that discretion should be exercised in favour of the Visa Applicant – decision under review set aside.
Migration Act 1958 ss 499, 499(1)(2), 501, 501(1), 501(6), 501(6)(c)(ii)
Goldie v Minister forImmigration and Multicultural Affairs (1999) 56 ALD 321
Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Vaitaikiv Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Wan v Minister forImmigration and Multicultural Affairs (2001) 107 FCR 133

REASONS FOR DECISION

14 August 2002 Mr RP Handley

This is an application by Leonardo Pereyra ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 17 December 2001 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Monika Lucia Serna Gomez ("the Visa Applicant").
At the hearing, the Applicant was represented by Parris Kazacos, Migration Agent, and the Respondent was represented by Andras Markus, 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 TribunalAct 1975 ("the T Documents"). Oral evidence was given in person by the Applicant and by conference telephone by the Visa Applicant.
Background
The Applicant, Mr Pereyra, was born in Uruguay on 28 May 1971 and is aged 31. He migrated to Australia with his parents, arriving in 1985 at the age of 14, and became an Australian citizen on 27 January 1987. He married the Visa Applicant, Ms Gomez, on 5 June 2000.
Ms Gomez was born in Colombia on 30 August 1968 and is aged 33. She is a Colombian citizen. Ms Gomez has a daughter, Valentina Perlaza Serna, who was born on 21 August 1993 and is aged nine.
Ms Gomez arrived in Australia on 7 December 1998 on a visitor visa valid for 3 months from the date of entry. Her passport and visa, issued in the name of Paula Andrea Lopez Giraldo, were false. Within a few weeks of her arriving in Australia, Ms Gomez met Mr Pereyra and they commenced a relationship. From early 1999, Ms Gomez was working casually in a massage parlour. On 5 November 1999, Ms Gomez was detained and taken to Villawood Detention Centre following a visit to her flat by the Australian Federal Police who wished to question her flatmate. On 8 November 1999, Ms Gomez was interviewed at Villawood by Grant Colbron, an officer with the Department, in the presence of an interpreter. During the course of this interview, Ms Gomez was informed of the possibility of applying for one of a number of visas including a protection visa and, on 9 November 1999, she applied for a protection visa using her false name. She claimed persecution in Colombia by the Guerilla Group, Fuerzas Armadas Revolucionarias de Colombia (FARC), the Revolutionary Armed Forces of Colombia. On 10 November 1999, Ms Gomez was granted a bridging visa valid until 28 days after notification of the final decision on her application and she was released from Villawood.
On 6 December 1999, Ms Gomez' application for a protection visa was refused but she did not receive notification of the decision sent to her by the Department. In January 2000, Ms Gomez and Mr Pereyra commenced living together in a de facto relationship at Mr Pereyra's parent's home. On 11 January 2000, Ms Gomez notified the Department of her change of address to that of Mr Pereyra's parents. On 14 March 2000, the letter of notification sent to Ms Gomez on 6 December 1999 was returned to the Department. On 17 April 2000, Ms Gomez, accompanied by Mr Pereyra and their migration agent, went to the Department's office at the Rocks to enquire about the result of her protection visa application. Ms Gomez was informed that the application had been refused and that she would be unable to seek a review of the decision by the Refugee Review Tribunal ("RRT") because her application for such a review would be out of time.
Ms Gomez also notified the officer to whom she spoke that she had used a false passport and visa to enter Australia and gave the officer details of her true name. On the same day, her migration agent notified the Department in writing confirming the details of the false passport and providing Ms Gomez' name and date of birth and details of her daughter.
On 5 June 2000, Mr Pereyra and Ms Gomez were married at the Registry of Births Deaths and Marriages in Sydney. On 10 June 2000, Ms Gomez departed Australia for Colombia. On 23 October 2000, Ms Gomez lodged an application for a subclass 309 visa at the Australian Embassy in Santiago, Chile. On 17 December 2001, a delegate of the Respondent decided to refuse Ms Gomez' application on the ground that she was not of good character because of her past and present general conduct and on the basis that he was not satisfied that he should exercise his discretion not to refuse the grant of a visa. On 25 January 2002, Mr Pereyra lodged an application with the Tribunal for a review of this decision.
Relevant Law and Policy
Under s 501(1) of the Migration Act 1958 ("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), which 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), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
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".
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.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Gomez 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 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
Evidence
Leonardo Pereyra (the Applicant)
Mr Pereyra said he trained as a jeweller and is currently self-employed. He and Ms Gomez met in late December 1998 when she was referred to him by a friend of hers with regard to some earings. Mr Pereyra said they liked each other on meeting and started going out together and, in time, fell in love. When they met, Ms Gomez did not speak English and she introduced herself using her false name of Andrea. She told him that she was here on holidays from Colombia, but she did not tell him, and he did not ask, when she was due to return. When, after a few months, he asked her again, she said she intended to spend "quite a bit of time in Australia" and could renew her visa to enable her to stay longer. Mr Pereyra was aware that she was working one or two days a week at a massage parlour.
Ms Gomez told Mr Pereyra in general terms about her problems in Colombia, but she only told him about this in greater detail after she was detained and taken to Villawood Detention Centre. While she was there, he helped her complete an application for a bridging visa because she is not able to write in English. Mr Pereyra said although he assisted Ms Gomez in completing her protection visa application, he was not aware that the application was in a false name. He had previously been aware that Ms Gomez had a daughter who was being looked after by Ms Gomez' mother while she was away in Australia. Ms Gomez told him that the father "was not around and did not act as a father to her daughter". Ms Gomez told Mr Pereyra that when she was younger, she had worked in a clothes shop and then for a magazine, undertaking a variety of tasks at the magazine because it was only a small business. While working there, she was approached by a member of FARC who demanded that the magazine distribute propaganda for FARC. When Ms Gomez refused, she was threatened and sexually abused. Her daughter and mother were also threatened. Mr Pereyra said Ms Gomez found it very difficult to talk about this and she did not give him many details.
After Ms Gomez was released from Villawood, she told Mr Pereyra more of the details of what had happened to her in Colombia, including about the false passport she obtained to enter Australia. They consulted a migration agent about this and went to inform the Department of this at the Rocks office on 17 April 2000. The migration agent also wrote a letter on Ms Gomez's behalf, which they took to the Department personally.
Mr Pereyra said that Ms Gomez was "petrified" about what was going to happen to her after her release from Villawood. He realised it was very important that they act properly in notifying the Department of the false passport. It took some time to decide how best to act. Mr Pereyra said that his wife had other options: she could have left the country and gone overseas and he could have followed her, they could have pretended to meet overseas and he could then have invited her to Australia. However, they decided that they should pursue the proper course in seeking to regularise Ms Gomez' status.
Not long after Ms Gomez was released from Villawood, in about early January, Mr Pereyra invited Ms Gomez to live with him at his parents' house. He introduced her to his parents just before she moved in. Ms Gomez then notified the Department of her change of address. At that time, she was complying with the conditions of her release from detention, which had included giving a $5,000 bond, and signing on at the Department's office at the Rocks two days a week. This signing on condition was later reduced to one day a week. When Ms Gomez notified of her change of address on 11 January 2000, Grant Colbron, her case officer, was unaware of the result of her protection visa application. It was only when she and Mr Pereyra attended the Rocks office on 17 April 2000, that they discovered that the application had been refused. By then, they were out of time for seeking a review of this decision by the RRT.
Mr Pereyra said he has been suffering from depression as a result of the separation from his wife. He consulted a psychologist, Gabriella Salabert, when he was very down and was having difficulty both sleeping and working. Ms Salabert referred Mr Pereyra to a doctor, a general practitioner, who prescribed an anti-depressant for him which he has now been taking for about six months. Mr Pereyra said this has assisted him a bit and enabled him to at least work.
Mr Pereyra said that he maintains contact with his wife in Colombia by telephone everyday, using phone cards. Their talking to each other daily helps a lot and they are able to support each other. He sends her money for her support. He said it would not be safe for him to go to Colombia because of the high risk of foreigners being kidnapped. Also there is no jewellery industry in Colombia and it would be very difficult for him to support a family.
Monika Lucia Serna Gomez (the Visa Applicant)
Ms Gomez was born in Pereia in Risaralda Province in Colombia. After leaving school, she had a variety of jobs, including working as a salesperson in two different shoe shops, as a salesperson selling three different brands of cosmetics, working as a secretary, working in the publicity industry, selling children's clothes and selling medication for laboratories at a national level. Most of these jobs she obtained through employment agencies. In 1992, she was working in a publicity/advertising agency as an administrative secretary and graphic designer when she was approached by a member of FARC with a view to her agency publishing propagander about FARC's activities. She refused to co-operate; she is a patriotic person and loves her country. They started to harass and threaten her and then, a few months after these threats began, she was buying a pizza when she was given a hallucinatory drug as a result of which she lost consciousness. She has no memory of the next three months until she was found in a city in the north east of Colombia called Cucuta and taken to hospital. Ms Gomez said she did not know who she was or which day it was. She was told at the hospital that she was pregnant as a result of a sexual assault. After that, she had a very difficult time through her pregnancy. She saw both a psychologist and a psychiatrist and also an occupational therapist. She still does not remember what happened during that period of three months – it is as if she has a mental blockage. She knows that she was given the drug in November 1992 and was in hospital in Cucuta in February 1993.
Ms Gomez said that FARC have supporters in all Colombian cities who carry out threats on the instructions of those in charge. When she returned to Pereia, she continued to have threats by way of anonymous telephone calls and post cards mentioning her daughter, how Ms Gomez was dressed and what might happen to her. She did not go to the authorities because she was afraid and because of corruption amongst the authorities, some of whom are involved with FARC. She found the situation very difficult to handle, and became very depressed and had difficulty working. However, her daughter was precious to her and she feels the need to fight to protect her.
In about 1996, Ms Gomez worked for another publicity company as a graphic designer. She was doing freelance work. She was still receiving threats from FARC who continued to harass her and her mother and daughter. They began asking for money which she did not have. The threats included her being approached in the city centre by someone who asked her whether she wanted to keep on breathing. She also received telephone calls late at night, and even after moving five times to avoid the threats and living in a security building, members of FARC would leave messages with the attendant saying "it is me, remember". Sometimes they would enter the fence around the building and make gestures in front of her windows. There were times when she did not feel opening the door or going out. She went to the public prosecutor's office to report her situation but was told that if she could not provide a name, they would not listen to her.
Ms Gomez began looking for a country to go to where she and her family would be able to breathe and where they would be away from such threats. She needed a country where she could go without a visa. The only such country was Spain. In about March/April 1996 – she remembers it was springtime, she flew to Spain. On arrival she was detained at the airport and told she was not permitted to stay in Spain. About six days later, she was returned to Colombia. Ms Gomez denied that in late 1997 she applied for a visitor visa for Australia in Santiago as recorded by the interviewer in his notes of the interview with Ms Gomez at Villawood Detention Centre on 8 November 1999 (S4). However, she had decided that she must try to go somewhere else, and she got in contact with people who sell false documents with a view to obtaining a false passport and visa to enable her to travel to Australia.
When she received the false documents about a month later, Ms Gomez went to buy tickets and left Colombia on 4 December 1998. However, on arrival in Sydney, she was frightened and felt like going home to Colombia immediately. She could not stop thinking about her family at home. But she could not return home because she needed to make some money. She had paid 7 million pesos for the false documents and wanted to earn money in order to be able to pay protection money to FARC. FARC demanded the equivalent of Aus$80,000 for her family's safety and she was receiving more and more demands. She felt she had no alternative but to comply because not to comply risked her family being exterminated. So she made up her mind to stay in Australia and went to a hotel and then sat in a park crying and wondering what to do.
The only possibility for her without a visa was to work in a brothel because they do not ask questions in such places. For a short time, she worked in a brothel for up to 18 hours a day until she was better able to handle her situation. But working in a brothel was unbearable and she could not stand working there long. So she started work in a massage parlour instead because there she "did not have to go to the extreme". Ms Gomez was asked why she did not seek to regularise her status. She said she did not know how to and, anyway, was frightened of going to the Department because of her false documents and she thought to do so would just make her situation worse.
Having worked for a little while, Ms Gomez wanted to buy something – a present by which to remember her visit to Australia - because she thought she might have to return to Colombia at any time. She was told about Mr Pereyra and went to see him in January 1999 with a view to having him make some jewellery of a typically Australian character for her. She said there was no problem for him in doing this for her. From this introduction, they began a relationship. At that time, she was only working one or two days a week because that was all her mind and body would allow. Initially, she told Mr Pereyra that she was on a working holiday from her job with a publicity company. She said "he was divine" and she fell in love. However, she did not want to tell him the whole truth, because she thought he might not want to see her again. So she has ended up giving the man she loves a huge problem.

Ms Gomez said the three months stay permitted by her visitor visa was not long enough to enable her to save sufficient money to pay protection money to FARC to make sure they left her family alone. She did not know whether her visa permitted her to work. Initially, on arrival, she thought that she would save the money and then go back to her family. However, after she met Mr Pereyra, although her obligations did not change, she took a different view because he offered her warmth, love and peace. She told him in general terms about her situation but not about her false papers. When she was detained and taken to Villawood, she told him more of the truth and he advised her to be honest with the authorities. It was only sometime after her release from Villawood, that she told him her true name. Up until then, she used the name Andrea and as a part of the conditions of her release, she used to sign on in that name when her husband accompanied her to the Department's office at the Rocks to do so.
After Ms Gomez began living with Mr Pereyra, he became aware of her nightmares and difficulty sleeping and so, ultimately, she decided to tell him the whole truth. She revealed her true name to him when they went together to see Grant Colbron at the Department's office at the Rocks for her to sign on, and she explained about her false papers. Ms Gomez said that her husband took it better than she expected.
Ms Gomez was asked about the interview with an immigration officer at Villawood on 8 November 1999. She remembered the officer explaining to her about the possibility of her applying for different types of visas. She agreed that she had asked for the information sheet about visas and indicated that she wished to apply for a Bridging Visa E. Ms Gomez said that until the interview, she knew nothing about visas or their processing. She said her understanding of a protection visa is that it is a visa issued while the authorities study the application. She told the immigration officer that if she had to leave Australia, she would.
She thinks it was Mr Pereyra who obtained the protection visa application form for her. She contacted him when she was detained and it was at this stage that he found out that her visa had lapsed and that she was in Australia illegally. While she was in Villawood, he visited her every morning and afternoon and assisted her in filling out the protection visa application.
He read her the questions in the form and then wrote down her answers. Ms Gomez acknowledged that her protection visa application was submitted in the false name in her passport and that the application did not disclose the existence of her daughter. She said that since the false passport showed her date of birth as being 4 December 1978, she felt that she could not disclose the existence of a daughter born in 1993. Ms Gomez denied making up the story of persecution referred to in the application.
The conditions on which her bridging visa was granted and to which Ms Gomez agreed in order to facilitate her release from Villawood on 10 November 1999, were the payment of a bond, that she would not work or study, that she would inform the Department of any change of address, and that she would report to the Department's office at the Rocks twice a week and not leave Sydney. Not long after her release, she went to live with Mr Pereyra and his parents. She was in a bad state at that time with anxiety and also muscular problems. Mr Pereyra took her to see a doctor and his father massaged her and she was taken care of by Mr Pereyra and his parents. They treated her like a member of their family and she now regards them as her family. She talked honestly to them and they helped her. Ms Gomez said she notified the Department of her change of address, being that of Mr Pereyra's parents, immediately on moving.
Ms Gomez said she did not receive any notification from the Department that her protection visa had been refused and it was only when she asked about this when she went to sign on at the Rocks office on 17 April 2000, that she was informed that her application had been rejected. Even Mr Colbron, her case officer, had not been aware of this. She was then told that she had to make arrangements to leave Australia.
Ms Gomez said that most of her spouse visa application was completed in Australia in the presence of Mr Pereyra and her migration agent, Mr Kazacos. She was aware that by returning to Colombia and then lodging her application for a spouse visa from there, she might not be permitted to return to Australia.
Ms Gomez said Colombia is like an inferno. The economy is in a very bad state, there is massive corruption, and unemployment is at a record level. She is living with her daughter and her mother and has not been able to work. She said it is more difficult to obtain employment when a person is over about 30 years old. Her husband sends her money fortnightly for her support. He calls her everyday and has not missed a single day since her return to Colombia on 10 June 2000. She desperately wants to live with her husband with her daughter.
Ms Gomez said her daughter, Valentina, who is aged nine, is attending a public school. She has always lived with either Ms Gomez or Ms Gomez' mother and has never visited Australia. She does not speak any English because this is not taught in Colombian schools.
SUBMISSIONS
Respondent
Mr Marcus, for the Respondent, said the first question for the Tribunal to consider is whether the Visa Applicant passes the character test. He referred the Tribunal to paragraph 1.9 of Direction No 21 which states that decision-makers should consider, amongst other matters, whether the person has been involved in breaches of immigration law or has, in connection with any application for the grant of a visa, provided a bogus document or made a false or misleading statement. Mr Marcus noted that such misconduct constitutes a serious offence under s 234 of the Act. While Mr Marcus acknowledged that there may be some countervailing factors in relation to the general situation in Colombia, he submitted that the Tribunal should reject Ms Gomez' claims of persecution as being untrue. He pointed to inconsistencies in her claims, including in previous statements, especially in relation to the details of her employment and the extent of the physical and mental abuse which she claims to have suffered. Mr Markus said Ms Gomez' evidence to the Tribunal exacerbates the difficulty for her in meeting the character test and illustrates her preparedness to mislead where she considers it to be of benefit to her. Mr Marcus said it is inherently unlikely that she would be the subject of individual attention by FARC over such a long period of time – nearly 10 years. Moreover, her evidence of being drugged and her suffering amnesia in respect of the ensuing three months is also inherently unlikely. Finally, it is unlikely that FARC would demand the equivalent of Aus$80,000 from her in the circumstances which she has described.
Mr Marcus said that Ms Gomez' claim that at the time of her travelling to Australia, she intended to return to Colombia is also not credible. He noted that she purchased a false passport and visa and made a false statement on entry when she completed the incoming passenger card. She took no steps to regularise her status after arrival and did not tell Mr Pereyra of the difficulties with her situation. Nevertheless, the Respondent acknowledges that her knowledge of protection visas at the time was probably non-existent. In summary, the Respondent contends that Ms Gomez does not pass the character test.
The second question for the Tribunal is, therefore, whether the residual discretion in s 501(1) should be exercised in her favour. With regard to the first of the three primary considerations to which decision-makers are referred by Direction No 21, the protection of the Australian community, Mr Marcus drew attention to the seriousness of Ms Gomez' misconduct and said that her evidence demonstrates a willingness to act in breach of the law in order to satisfy her own objectives. There are cogent public policy reasons in favour of deterring those who are likely to commit similar misconduct. With regard to the second of the primary considerations, the expectations of the Australian community, Mr Markus said that the Respondent contends that the community would expect that, given the seriousness of Ms Gomez' misconduct, a visa would be refused. However, he acknowledged that the hardship to the Applicant and Visa Applicant would be a relevant matter to take into account.
With regard to the third primary consideration, the best interests of the child. Mr Marcus submitted that the best interests of Ms Gomez' daughter are that she remains with her mother and grandmother in Colombia where she has always lived. She is at school there, speaks no English and, if she were to accompany her mother to Australia she would lose contact with her grandmother. Moreover, she has never met Mr Pereyra. Nevertheless, Mr Marcus acknowledged that in general terms the situation in Australia for children are better than that in Colombia.
With regard to the other considerations to which decision-makers are referred by paragraph 2.17 of Direction No 21, Mr Marcus acknowledged that there would be hardship to Mr Pereyra as a result of a refusal of a visa to Ms Gomez. The Respondent accepts that Mr Pereyra has given truthful evidence and was unaware of his wife's circumstances until late 1999. The Respondent accepts that the marriage is genuine and that Mr Pereyra suffers hardship as a result of the separation. Mr Marcus recognised also that for Mr Pereyra to move to Colombia would cause him significant further hardship. However, the Respondent notes that Mr Pereyra was aware of Ms Gomez' circumstances at the time of their marriage, although acknowledges that they had a genuine marital relationship prior to the ceremony. Nevertheless, Mr Pereyra did not draw the Department's attention to the fact of Ms Gomez having used false papers to enter Australia until some months after he became aware of this.
The Respondent also acknowledges that there is hardship to Ms Gomez by reason of their separation and there would be further hardship if a visa were to be refused. Nevertheless, the Respondent submits that this hardship should be given little weight because of the circumstances of Ms Gomez entering Australia using bogus documents and making a protection visa application in a false name.
Applicant
Mr Kazacos, for the Applicant, sought to rely on his previous written submissions. He said while Ms Gomez has admitted her migration misconduct, her commission of that misconduct is mitigated by her circumstances in Colombia, in particular, the abuse and threats by FARC. Mr Kazacos said the inconsistencies pointed to by the Respondent in various written statements by Ms Gomez, appear to be as a result of various forms being filled out by third parties, including officers of the Department, Mr Pereyra and Mr Kazacos himself. They appear to be typographical or a consequence of misunderstandings. However, Ms Gomez was forthright in giving evidence to the Tribunal. Mr Kazacos noted that Ms Gomez' claims of persecution have never been investigated fully, largely because the decision to refuse her a protection visa was not reviewed by the RRT as a result of Mr Gomez not receiving notification of the decision within such time as would have permitted her to seek a review of this decision by the RRT. Mr Kazacos referred the Tribunal to its decision in Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551, where the visa applicant had suffered significant physical abuse and sought to escape Pakistan by purchasing a stolen passport to enable her to travel to Japan and then to the United Kingdom. The Tribunal accepted that there were compelling countervailing factors which explained why she engaged in unlawful activities, which factors the Tribunal took into account in deciding that the visa applicant did satisfy the character test for the purposes of s 501(6)(c) of the Act.
Mr Kazacos drew the Tribunal's attention to the fact that Mr Pereyra is suffering from depression for which he is taking prescribed medication. He could not live in Colombia because foreigners are targeted by kidnappers and he would be unable to obtain employment to support his family. Mr Kazacos noted that Mr Pereyra was already in a de facto relationship when he became aware that Ms Gomez had entered Australia using false documents and had used a false name. Mr Pereyra and Ms Gomez chose to pursue the correct course in deciding that she should return to Colombia and then apply for a spouse visa from there, despite being aware of the risk of her application for such a visa being unsuccessful. Mr Kazacos said this demonstrates Ms Gomez' remorse and her willingness to make amends and pursue the proper course. Mr Pereyra's family came from Uruguay and so have a strong and personal commitment to the Australian system and to its immigration processes.
Mr Kazacos contended that there was no possibility of Ms Gomez repeating her misconduct. She acknowledges its seriousness. Deterrence will not be achieved by denying her a visa because she acted as she did in order to flee what she considered to be a life threatening situation. She did not come to Australia for her own self-advancement but in order to save her family. The situation on arrival in Australia and her needing to work unlawfully in a brothel in order to support herself and to save money to pay FARC, was hardly an ideal situation. Mr Kazacos said the Australian community would take a humane view of her situation and would not expect that a visa would be refused in these circumstances.
With regard to Ms Gomez' daughter, Valentina, Mr Kazacos noted that the Respondent acknowledges that a child's long term future is likely to be better in Australia than Colombia. Learning English at a young age would not be a problem for Valentina and it should be possible for her to maintain her relationship with her grandmother through visits whether in Australia or Colombia.
APPLICATION OF THE LAW AND FINDINGS
As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Gomez 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…
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 Gomez, 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.
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, where 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 such as 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-citizens character or conduct or both paragraph 1.9(c)).
Ms Gomez admits that she purchased a false passport containing a visa to enable her to enter Australia. She adopted the name used in the false passport, Paula Andrea Lopez Geraldo, which she used for the ensuing period, stating this name on the incoming passenger card on her arrival in Australia along with details of the false passport. She stated on the incoming passenger card that her intended length of stay was 10 days (T p167) even though it is clear that she intended staying longer. Her intention was to get away from Colombia and the threats and harassment to which she was subject, and save some money by working in Australia which would enable her to pay the protection money which had been demanded by FARC if her family were not to be harmed. Ms Gomez' evidence at the hearing was that on arrival in Australia, she intended to work and to save money for this purpose and then to return to Colombia. She said she was not aware of whether the visitor visa permitted her to work in Australia: obviously, she needed some means of support and, without proper documentation, the only initial avenue open to her was to work in a brothel. She was able to endure this for a short time only and then began working in a massage parlour on a few days a week. It was at about this time, in late 1998 or early in January 1999, that Ms Gomez and Mr Pereyra met. The Applicant does not dispute that Ms Gomez worked without permission and overstayed the visitor visa in her false passport which permitted a stay of not more than three months.
Ms Gomez was detained on 5 November 1999 when the police came to her flat looking for her flat mate. She was taken to Villawood Detention Centre where, on 8 November 1999, she was interviewed by an immigration officer, Grant Colbron, in the presence of an interpreter. During the course of the interview, she did not reveal her true name or that she had entered Australia using a false passport. The record of interview completed by Mr Colbron (S4) makes reference to her responding that she was trying to organise a flight for departure, to her having previously been refused a visitor visa when she applied at the Australian Embassy in Santiago in late 1997, and to her wanting to leave Australia as soon as possible but wanting to apply for a visa in the meanwhile. Ms Gomez said in evidence that she had never applied for a visitor visa in Santiago and said she did not understand about different kinds of visas. At the interview, she was provided with an information sheet entitled "Visa Options", as a result of which Mr Pereyra, who was visiting her at Villawood twice a day, obtained an application form for a protection visa which he assisted her in completing. This protection visa application was also in her false name, Mr Pereyra not being aware of her true name at this time. In the application, she claimed to have been persecuted in Colombia but gave few details.
Ultimately, on 10 November 1999, Ms Gomez was released on a bridging visa with certain conditions, including reporting to the Department's office at the Rocks twice weekly. Her application for a protection visa was lodged on 9 November 1999 and was refused on 6 December 1999. The Tribunal accepts that Ms Gomez did not receive the letter of that date notifying her of the refusal and did not become aware of the refusal until 17 April 2000, by which time it was too late for her to seek a review of the decision by the RRT. Thus, her claims of persecution in Colombia were never tested at the RRT. Having heard Ms Gomez' evidence, notwithstanding that there are some inconsistencies in the written statements concerning the abuse and threats suffered by her in Colombia, the Tribunal finds that she was threatened and abused by FARC and was frightened as a result for her own safety and that of her family. The Tribunal recognises that such threats, physical abuse, violence and kidnapping are all commonplace in Colombia as a result of FARC's activities.
The Tribunal notes that Ms Gomez is not literate in English and the application forms signed by her were completed by third parties where, because of differences in language, misunderstandings may have arisen. Nevertheless, having heard Ms Gomez' evidence, the Tribunal is satisfied that, as a result of what happened to her, Ms Gomez was living in fear and that this was the reason for her purchasing a false passport including a visa to enable her to enter Australia.

On the basis of the Tribunal's findings with regard to Ms Gomez' conduct in entering Australia using bogus documents and in making false and misleading statements concerning her identity and intended stay in Australia, the Tribunal is satisfied that there are sufficient grounds for a determination that Ms Gomez does not pass the character test by reason of her past and present general conduct pursuant to s 501(6)(c)(ii) of the Act. The Tribunal notes that although there are countervailing factors, namely her situation in Colombia, the Tribunal does not consider that these factors of themselves are sufficient to warrant a finding that Ms Gomez passes the character test. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether or not to refuse the grant of a visa to Ms Gomez.
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.

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.

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…

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).

Examples of offences considered by the Government to be serious include serious crimes against the Migration Act 1958, which in turn include "presenting false or forged documents or 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.

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".
With regard to this first primary consideration, the Tribunal has found that Ms Gomez presented false documents and made false or misleading statements in connection with her entry into Australia. Such misconduct is regarded as serious by the Australian community. Nevertheless, the Tribunal accepts that there are mitigating circumstances in Ms Gomez' case in relation to the threats to her safety and that of her family made by FARC members in Colombia. The Tribunal accepts that Ms Gomez suffered physical abuse by FARC in late 1992 although the account given by Ms Gomez in evidence lacks the detail which would enable the Tribunal to make specific findings about what occurred.
The Tribunal recognises that the rape which Ms Gomez says she suffered and the ensuing period during which she, presumably, was detained against her will, would probably make her ultra sensitive to later threats as to her safety and that of her family. Ms Gomez has expressed her remorse at what happened and the situation in which she has placed her husband. Once she had admitted to use of a false name and passport, she determined to follow the proper course by returning to Colombia and making her spouse visa application from there. In the Tribunal's view, the risk of Ms Gomez repeating the misconduct committed by her is minimal. The Tribunal acknowledges that the refusal of visa where a person has been guilty of immigration misconduct is likely to have a deterrent effect on others who may be contemplating such misconduct.
The second primary consideration is the expectations of the Australian community. Paragraph 2.12 states there is an expectation that non-citizens should obey Australian laws while in Australia. In the Tribunal's view, remaining in Australia unlawfully and working without permission are serious matters, nevertheless, the Tribunal notes what Deputy President McMahon said in Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054, of the relevant paragraph in Direction No. 17 which is expressed in identical terms in paragraph 2.12 of Direction No 21:
Paragraph 2.12 (of Direction No 17) gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely. This view has been cited with approval by the Tribunal in other cases, for example, in Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74.

In Ms Gomez' case, the Tribunal is of the view that the Australian community would take a humane view of the other considerations in this matter.

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 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".
The Tribunal finds that Ms Gomez' daughter, Valentina, will be nine on 21 August 2002. She has lived all her life in Colombia, being cared for by her mother or, while her mother was in Australia, by her grandmother. Currently, Ms Gomez, Valentina and her grandmother live together. Valentina attends school in Pereira where they live. She does not speak English and has not met Mr Pereyra. The Tribunal recognises, as stated in paragraph 2.15 of Direction No 21, that a child's best interests would generally be served if the child remains with its parents. Although in this case both parties recognise that in general terms a child is likely to have a better future in Australia than in Colombia, nevertheless, in the Tribunal's view, the child's best interests do not outweigh the cumulative effect of other considerations.
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; the non-citizen's business and other ties to the Australian community; genuine marriage to an Australian citizen, bearing in mind the circumstances in which 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; and the family composition of the non-citizen's family, both in Australia and overseas.
There is no dispute that the relationship between Ms Gomez and Mr Pereyra is a genuine marital relationship. The Tribunal is unable to reach any conclusive finding as to whether or not Mr Pereyra was aware at the time that he and Ms Gomez starting living together in a de facto marital relationship of her using a false passport and a false name. He was certainly aware that she had been in Australia without a valid visa and without permission to work. Undoubtedly, at the time they commenced living together they were genuinely committed to one another. [It seems likely that Mr Pereyra became of Ms Gomez use of the false passport and false name in the early part of 2000].
The Tribunal finds that the separation of Ms Gomez and Mr Pereyra which has now been ongoing for more than two years since she left Australia on 10 June 2000, has caused significant hardship to both parties. In Mr Pereyra's case, the Respondent accepts that Mr Pereyra has given truthful evidence and that he was not aware of his wife's immigration misconduct until late 1999. The Respondent also accepts that his moving to Colombia would cause significant hardship and that these are matters which the Australian community would take into account in forming a view as to whether or not Ms Gomez' application for a spouse visa should be refused. The Tribunal finds that Mr Pereyra is suffering from depression for which he is currently taking prescribed medication. He is financially supporting his wife by sending her money fortnightly to Colombia. They provide each other with mutual emotional support by speaking on the telephone every day. The Tribunal finds that Ms Gomez is also suffering significant hardship and accepts her evidence that she is still receiving threats and is frightened for her own safety and that of her family. While her immigration misconduct should be taken into account in deciding what weight should be given to her hardship, nevertheless, the mitigating circumstances of her situation should be taken into account.
Weighing up the primary and other considerations, the Tribunal concludes that Ms Gomez is no threat to the Australian community and that the Australian community would view Mr Pereyra's and Ms Gomez' situation humanely and would not expect that her application for a spouse visa would be refused. The other considerations in this case, in particular the hardship to the parties, are of significance and, in the Tribunal's view, the discretion not to refuse the grant of a visa under s 501 of the Act should be exercised in favour of Ms Gomez. The Tribunal therefore sets aside the decision under review and remits the decision to the Respondent with a direction to that effect.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  29 and 30 July 2002
Date of Decision  14 August 2002
Representative for the Applicant              Mr P Kazacos, Migration Agent
Representative for the Respondent        Mr A Markus, Solicitor