Pienko and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 1306

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1306

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/44

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MRS CHARMAINE PIENKO

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date3 December 2004

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and the matter is remitted to the respondent with a direction that the discretion under s501(1) of the Migration Act 1958  be exercised in favour of the visa applicant.

(Sgd  Hon R J Groom)

Deputy President

CATCHWORDS

Immigration – Sub-class 309 spouse visa – character test –inaccurate answers in visa application  – visa applicant fails the character test on the ground of a 1 year suspended sentence in Poland – discretion that the tribunal may exercise where the applicant fails the character test – offences not serious – language difficulties – no intention to mislead – unlikely to re-offend -  primary and other considerations – impact on Australian citizen - decision under review set aside.

Migration Act 1958 – s501(1), 6(a), 7(c)

Direction 21

Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Damaskos and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 500

REASONS FOR DECISION

3 December 2004 The Hon R J Groom (Deputy President)

1. This is an application to review a decision by a delegate of the respondent made on 24 November 2003 refusing the visa applicant a Sub-class 309 Spouse Visa. The decision was made under s501(1) of the Migration Act 1958 (“the Act”) on the ground that the visa applicant did not pass the character test within the meaning of the Act.

2.      The hearing was held in Melbourne on 26 October 2004.   The review applicant was represented at the hearing by Mr Guy Gilbert and the respondent by Mr Steven Small.   Oral evidence was given by the review applicant Mrs Charmaine Pienko, the visa applicant Mr Sebastian Pienko (by telephone link to the United Kingdom), Ms Theresa Darcy and Mr Thi Lam Bui.  Several documents were tendered in evidence.

Background Facts

3.      On the material before me I find the facts as set out in this and subsequent paragraphs:

(a)The review applicant was born in Saigon, Vietnam on 24 June 1977.   She arrived in Australia as a child on 20 February 1980.   She is an Australian citizen and is now aged 27 years.   

(b)The visa applicant was born in Puck, Poland on 21 August 1981 and is a Polish citizen aged 23 years.

(c) The review applicant and visa applicant met in London in July 2002.    The visa applicant was studying English and the review applicant was in the United Kingdom on a working holiday.  They formed a close relationship and were married in London on 27 March 2003.

(d)The application for a spouse visa was lodged at the Australian High Commission in London on 30 April 2003.

(e)The review applicant returned to Australia in June 2003 as her working visa was about to expire.    The visa applicant stayed in London to continue studying English.   After the visa application was refused the visa applicant returned to Poland on 18 December 2003 and on 17 January 2004 the review applicant travelled to Poland to be with her husband.     He has since returned to London where he is presently working.

(f)There are no children of the marriage.

(g)In his application for a spouse visa, the visa applicant did not disclose that he had been convicted of two offences in Poland.    His first offence occurred in June 2000 when the visa applicant was aged 18.   He had failed to pass a driver’s licence test and was later offered a forged driving licence by a person he met. He was subsequently apprehended by Polish police in possession of the false licence.   The Polish Court imposed sentence of 29 January 2001. The visa applicant was sentenced to a term of imprisonment of 12 months, which was wholly suspended.    He was also fined and placed under the supervision of a parole officer.  The second offence occurred in June 2001 when the visa applicant was in the Polish Army.   He was then 19 years of age.   It involved the possession of a small quantity of cannabis.   He was convicted by a military court on 3 September 2001 and was sentenced to a term of imprisonment of 6 months, again wholly suspended.   He was also placed under the supervision of a parole officer for this offence.

(h)The driving licence offence occurred in the following circumstances:   The visa applicant had failed his drivers licence test for the second time.     He was embarrassed and upset about the failure and was worried that he would have to tell his parents.    He was approached by a stranger who said he could arrange a licence for him.   The visa applicant gave him his photograph and a forged licence was provided to him at a cost of 500 PLN.    He has since passed the drivers licence test and examination and holds a legal drivers licence.

(i)The cannabis offence was committed after the visa applicant had been in hospital following an accident during military training.   He met a person in hospital who asked him whether he had ever smoked cannabis.    He says he tried it “once or twice” at that time.   After leaving hospital he again met the person and the two were caught smoking cannabis by an army major.   The following day, 13 June 2001, 3 grams of cannabis were found in the visa applicant’s possession.

(j)The visa applicant has expressed remorse for “his past mistakes” and stated that he has “not been in trouble since my last offence in 2001”.   There is no evidence suggesting that statement is not truthful.

(k)In the “Notice of Decision to Refuse a Visa Under s501 of the Migration Act 1958” reference is made to a conviction for “forgery/providing false documents” and also conviction “for drug addiction”. I find that these descriptions are inaccurate and misleading descriptions of the actual offences committed by the visa applicant. They give the impression of offences far more serious than those for which the visa applicant was in fact convicted. The reference to “drug addiction” no doubt arose because the Polish legislation is entitled “The Law of Counteracting Drug Addiction”. There is no evidence that the visa applicant is addicted to any drugs.

(l)In answer to a question on the application form for his spouse visa, the visa applicant crossed the relevant box indicating a “No” answer to the question “Have you ever been convicted of a crime or offence in any country (Including any conviction which is now removed from official records)?”

(m)To the question  in Form 26 on his visa application, he was asked “have you ever been addicted to a drug or taken drugs illegally?”    The visa applicant answered “No”.

(n)The review applicant and visa applicant jointly answered question 67 in Form 47SP.    They say they wrongly assumed that “convicted” meant serving a term of imprisonment and answered the question accordingly.

(o)I accept the review applicant’s evidence that she is not experienced in criminal law and did not understand the true meaning of the word “convicted”.

(p)As far as the cannabis conviction is concerned, the review applicant and the visa applicant have claimed that in answering the relevant question they both wrongly assumed on the facts known to them that the visa applicant had not been sentenced for the offence, but had received some kind of warning.

(q)I accept the evidence given by the review applicant and visa applicant that they lodged the application for a spouse visa without professional assistance following an assurance by the High Commissioner in London that they did not need advice on how to fill out the form.

4.      I am satisfied on the evidence before me that at the time the visa application was completed and signed, both the review applicant and visa applicant  understood that the visa applicant would be required to  provide an official police record from Poland, and did not believe that the record from Poland would be different from  the answers given in the visa application.

5.      Neither the cannabis offence nor being in possession of a false drivers licence would be considered particularly serious offences in Australia.  

6. In Victoria, for example, possession of a motor vehicle licence obtained by dishonest means is punishable by a maximum fine of $1,000 or imprisonment for 2 months. (See s71(b) Road Safety Act 1986 (Vic)).  It would be rare for a first offender to be sentenced to any term of imprisonment, suspended or otherwise.

7.      The applicant was charged before the Polish Military Court with being in possession of 3 grams of cannabis.    Possession in Victoria of a small quantity of cannabis (less 50 grams) is punishable by a fine of $500 only, and there is no power to imprison.    If satisfied that the small quantity is only for personal use, the court must proceed without conviction and adjourn for a further hearing to a date to be fixed (see ss73 and 76 Drug, Poisons and Restricted Substances Act 1981 (Vic)).

8.      I am satisfied on the evidence before me that the visa applicant is now a law abiding citizen.   There is no evidence of further offences in the United Kingdom or Poland.   On the issue of the visa applicant’s character I was impressed by the oral and written evidence of Ms Theresa Darcy.   Ms Darcy said in her written statement that she had known the visa applicant for a period of 2 years through her friendship with the review applicant.   Ms Darcy said:

“I have known Sebastian Pienko for nearly two years and I am aware of Sebastian Pienko’s past criminal convictions from Poland relating to possession of marijuana and possession of an illegal driver’s licence.

These offences were committed when Sebastian was younger and still immature.  It is my experience that a lot of guys of that age are immature and lack judgment.  They seem to grow up overnight when they settle into a good and steady relationship.

On all occasions when I have attended social events with Charmaine and Sebastian such as barbecues at their house in London, going away parties at a bar, dinner with friends and on one occasion nightclubbing, I have never seen Sebastian smoking marijuana, cigarettes or taking any drugs.   He was always impeccably behaved and responsible and caring of Charmaine.

I have Sebastian to be a friendly, kind, caring and well mannered person.   He has made by friend Charmaine very happy and she has been devastated at the refusal of his visa.”

9.      I also have the advantage of hearing the review applicant’s evidence and observing her demeanour in the witness box.    She impresses as an honest and capable young Australian citizen devoted to her husband.  I am satisfied that they are in a genuine marriage relationship and she is earnestly wanting him to join her in Australia.

Direction 21 and Section 501

10. Under s501(6)(a) a person does not pass the character test if he or she has a substantial criminal record within the meaning of s501(7) of the Act.

11. Under s501(7)(c) if a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment for 12 months or more.

12. The applicant was sentenced in Poland to a term of imprisonment of 12 months. Although the term was wholly suspended, it is still a substantial criminal record within the meaning of the Act, and therefore the applicant fails the character test. (See Damaskos and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 500).

13. The issue for the Tribunal in this case is to decide whether to exercise the discretion provided under s501 of the Act in favour of the visa applicant even though he does not pass the character test.

14. In considering the exercise of this discretion, it is necessary for the Tribunal to be guided by and have due regard to Ministerial General Direction (No 21 – “Direction under s 499 visa refusal and cancellation under s501 of the Migration Act 1958”) (“Direction 21”).

15.     In making a decision in this case I must have regard to the primary considerations set out in  Direction 21, which are:

(a)      the protection of the Australian community;

(b)      the expectation of the Australian community; and

(c)       the best interests of any children.

It is necessary for me to adopt a balancing process taking into account all those primary considerations and other relevant considerations.  (See 2.2 of Direction 21).

Protection of the Australian Community

16.     First, the Tribunal must consider the seriousness and nature of the conduct.

17.     I agree with the arguments advanced by counsel for the applicant that the offences committed by the visa applicant fall very much at the lower end of the scale of criminal conduct.   As mentioned above if the offences were committed in Victoria it is likely very light penalties would be imposed.   As far as the cannabis offence is concerned, it is possible that no penalty would be imposed.    Almost certainly neither offence would result in a term of imprisonment, suspended or otherwise.

18.     Although drug offences are highlighted in 2.6(a) of Direction 21, the drug offences referred therein include very serious drug offences, such as trafficking or dealing in drugs for commercial gain.   “Heroin”  is specifically referred to.  The offence committed by the visa applicant was clearly not a serous drug offence of that kind.   The more serious issue is the failure by the visa applicant to reveal the 2 prior convictions in answer to question 67 in Form 47SP and giving an incorrect answer  to a question in Form 26 of the visa application.

19.     It is essential to the effective operation of the Australian migration system  that individuals be truthful in their dealings with the Australian authorities.  I refer to Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 @ 155-6:

“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.”

20.     I am satisfied in the answers provided by the visa applicant and the review applicant, that they were not involved in a deliberate misleading of the authorities.    The evidence indicated that they were both aware that in due course the visa applicant would have to provide details of any criminal record in Poland.   The convictions were forwarded to the Department following receipt of his criminal history from Poland.  This information was provided before the application was finally considered by the respondent’s delegate.

21.     As far as form 26 is concerned, although the answer to the question “Have you ever been addicted to a drug or taking drugs illegally?”  was incorrect, the visa applicant’s Polish criminal record was forwarded at about the same time that form was sent to the Department.  The criminal record clearly shows that the visa applicant had offended against the relevant Polish law and explained the precise nature of the offence.

22.     The failure by the visa applicant to provide accurate answers to those important questions does raise serious concerns about his character.  However on all of the evidence before me, I am satisfied that this was not a deliberate or calculated attempt to mislead the Australian authorities.    I have had the opportunity to hear oral evidence of both applicants including their explanations of the inaccurate answers.  The visa applicant’s first language is Polish.   I am satisfied that at the relevant time his knowledge of English was limited.   The review applicant came to Australia at a young age and was brought up in a Vietnamese Australian family.   Her command of English is good but it does not necessarily follow that she has a sound understanding of words such as “conviction”.   The review applicant says, and I accept her evidence as truthful, that the review applicant explained about his two offences to her.   I am satisfied that there were some language difficulties in the visa applicant’s attempts to explain precisely what had happened in respect of the offences.    Certainly both applicants should have been more careful and made further inquiries before answering “no” to the questions, but I am satisfied on the evidence before me that the visa applicant did not deliberately make a false or misleading statement or declaration in the visa application.

23.     This is certainly not a case like the oft cited Lachmaiya (supra).   In that case the applicant was found to have constantly lied to the authorities.   He provided a false name, date of birth and birth certificate.    He described himself as a priest, but had never been a priest.    He said he had been employed for 8 years as a priest in a temple.   He had in fact worked at a hotel under a false name.   In the present case the evidence falls well short of establishing that the visa applicant is an untrustworthy and dishonest person.

24.     I must now consider whether there is any risk of recidivism.

25.     The visa applicant had not been charged with criminal offences before 2000 or since 2001.   I have already mentioned that I consider the two offences not to be particularly serious.   He committed them when he was a teenager.  Having heard the evidence I am inclined to the review that the visa applicant is essentially a decent young man who at a young age had two  brushes with the law, but is unlikely to re-offend again in any serious way.

26.     The next matter that I must consider under Direction 21 is the question of general deterrence.     General deterrence is always an important issue and it is true that a refusal to grant a visa can act as a deterrent to others who might be like minded.   Honesty and accuracy in answering questions in visa applications is critical to the proper operation of the Australian migration system, and refusing a visa on the ground of dishonesty and inaccuracy of answers may act as a deterrent.    However in this case, I do not find that the wrongful answers were given deliberately nor do I find the two offences to be particularly serious.   I do not consider general deterrence justifies a refusal to grant the visa in this case.

The Expectation of the Australian Community

27.     This is always a very difficult test for the Tribunal.   Without evidence on the matter it is hard to judge how the community might react to a given situation.   However in all the circumstances and on the evidence I conclude that if fair minded citizens of this country were aware of all the relevant facts, they would not wish to deprive the visa applicant of the opportunity to join his Australian wife so that they can live together in Australia.

28.     The question of the protection of children is not relevant in this case as there are  no children of the marriage.

29.     It is necessary to consider  any other considerations and under Direction 21 at 2.7(p) any genuine marriage to an Australian citizen and the impact on such a marriage.   In assessing the compassionate claim of the Australian partner, consideration must be given to whether the non-citizen was of character concern before entering into or establishing a relationship.

30.     I am in no doubt the marriage here is a genuine one.   On the evidence the relationship was established before the review applicant became aware of the details of the visa applicant’s two prior offences in Poland.

31.     It is reasonable in this case to give full and proper consideration to the impact on the Australian citizen, that is, the review applicant, should the visa applicant not be able to come to Australia to live.   The review applicant is an Australian citizen who has spent almost all of her life in Australia.      It would not be reasonable for her to leave this country to pursue her marriage with the visa applicant, unless there are strong and compelling reasons why that should be necessary.   The review applicant has a loving family living in Australia who want her and her husband to be part of that family.   The family is clearly hardworking and involved in business in Victoria.   The review applicant is the only daughter.   The review applicant works in the family business.     It would be distressing for the review applicant’s family if she was forced to travel to Poland or elsewhere to continue in her marriage with the visa applicant.   The evidence is that the review applicant would suffer personal, financial and psychological hardship if she were required to move to Poland or another country to join her husband.

Conclusion

32.     I conclude that the visa applicant has not committed serious offences and is unlikely to be involved in criminal conduct in the future.   I find that he did not deliberately mislead the Australian authorities in inaccurately answering the two questions in his visa application.    I find that despite his two offences in Poland, he is essentially a law abiding citizen who has the potential to contribute in a positive way to Australian society.    The adverse impact on the review applicant, an Australian citizen, will be serious if the visa applicant’s application is unsuccessful.

33.     Weighing up the primary considerations and Direction 21 and other considerations and carefully considering all of the circumstances of this application, I have decided that the discretion should be exercised in favour of the visa applicant.

34. I therefore direct that the decision under review be set aside and the matter remitted to the respondent with a direction that the discretion under s501 of the Act be exercised in favour of the visa applicant.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  26 October 2004
Date of Decision  3 December 2004
Counsel for the Applicant         Mr Guy Gilbert
Solicitor for the Applicant          Ms Helen Glass, Glass & Co Lawyers
Counsel for the Respondent     Mr Steven Small
Solicitor for the Respondent     Australian Government Solicitor