Pini and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 995
•23 September 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 995
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/633
GENERAL ADMINISTRATIVE DIVISION ) Re KARINA PINI Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis, Deputy President Date23 September 2004
PlaceSydney
Decision For the reasons herein before set forth the decision under review is set aside. The application is remitted to the Respondent with a direction that the available discretion be exercised in favour of the Visa Applicant.
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[sgd] The Hon R N J Purvis
Deputy President
CATCHWORDS
Immigration – spouse visa – character test - overstayed visitor visa – advice from cautioned migration agent – issue of false representations – Visa Applicant not of good character – relevance of discretionary factors – compassionate grounds – discretion exercised – decision under review set aside – discretion exercised in favour of Visa Applicant
Migration Act 1958, section 501
Ministerial Direction 21
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648
Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766
McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805
REASONS FOR DECISION
September 2004 The Hon R N J Purvis, Deputy President the application
1. Mrs Karina Pini, the Applicant in these proceedings, has appealed to the Tribunal against a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Respondent”) of 19 May 2004 refusing to grant a subclass 309 spouse provisional visa to Julio Cesar Pini Castelan (“the Visa Applicant”) pursuant to section 501 of the Migration Act 1958 (“the Act”).
2. In the reason given for the refusal decision based as it was on an adverse character finding and the non-exercise of the available discretion, it was stated inter alia (T2/pp 10, 11, 12, 13, 14, 15):
“22…Mr Pini Castelan was an unlawful non-citizen from 13 January 2000 until 4 October 2000 when he applied for a Protection Visa.
23. At interview he initially stated that he applied for a protection visa solely to remain in Australia with his wife but later changed his mind and stated that it was because he had a genuine fear of persecution in Argentina as when he had contacted his father someone had been making enquiries about him.
…
24. He further stated that his reasons for travelling to Australia were motivated by his need to leave Argentina. Mr Pini Castelan confirmed that he did not disclose his fear at the time that he applied for his original visa nor at the time that he applied for his extension. He stated that he did not declare this in his visitor application as he had not formed an intention to remain in Australia until he had met and married Mrs Pini.
25. The response to the Notice of Intention to Refuse confirms that he stayed to be with her at the expiry of his visitor visa. However, in the submission provided by Mr Pini Castelan’s agent, in relation to the Notice of Intent to Refuse, it is claimed that Mr Pini Castelan sought advice from an agent prior to his marriage who advised him that he should apply for refugee status as he would not be required to leave the country. He was advised that he would eventually succeed as the Minister would eventually intervene. This agent was JMP Migration who have recently been cautioned by MARA. Mr Pini Castelan and his agent claim that at no time was he informed of the negative implications of lodging a protection application. Neither party take any responsibility for this action. They now claim he was merely trying to stay with his wife and relied on his migration agent’s assistance.
…
28. Mr Pini Castelan’s conduct falls within the scope of section 501(6) (c) (ii), in that he breached immigration law by:
·Making a frivolous Protection Visa application to the Department
·Remaining in Australia as an unlawful non-citizen.
29. Mr Pini Castelan’s conduct also falls within scope of section 501(6) (c) (ii), in that he, in connection with his application for a Protection Visa made a false and misleading statement. At interview Mr Pini Castelan initially stated that he applied for a protection visa as he did not wish to leave his wife and later in the interview stated he applied as he was fearing persecution in Argentina. I see this claim as dubious…
35. Mr Pini Castelan has committed a number of offences against the Migration Act. While the offences he has committed are perhaps on their own not of as serious a nature as some of those outlined above, it is open to you to consider the nature of the offences in total, the premeditated nature of the offences and Mr Pini Castelan’s deliberate action when he committed them.
…
37. Mr Pini Castelan’s disregard for Immigration law is more significant when one considers his willingness to lodge a frivolous application for a Protection Visa for the sole purpose of prolonging his stay in Australia.
…
43. Mr Pini Castelan’s attitude, both at interview and his response to the Notice of Intention to Refuse, suggests that he accepts little responsibility for his actions.
…
44. In fact it would appear that the only restriction to Mr Pini Castelan’s re-offending is his absence from Australia and his current motivation to return to Australia permanently to be with his spouse.
…
59. It is also significant that Mr Pini Castelan’s spouse is of Uruguayan origin, as is her family. Consequently, the option of travelling to Argentina or Uruguay to visit or reside with Mr Pini Castelan should not pose any significant cultural difficulty for them.”
the hearing
3. At the hearing of the application before the Tribunal the Applicant was represented by Ms Baiba Lingeberzins, solicitor and registered migration agent with Messrs Turner Freeman Lawyers and the Respondent by Mr Murray Allatt, a solicitor employed by the Australian Government Solicitor.
4. The documents lodged with the Tribunal by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal 1975 were admitted into evidence and marked T1 to T26. Written material tendered on behalf of the Applicant were marked as Exhibits, namely:
Exhibit No
Description
Date
A
Medical certificate: Winston Hills Medical Centre
1 July 2004
B
Statutory Declaration of Julio Pini Castelan
24 August 2004
C
Letter from New Zealand Red Cross
10 August 2004
D
Statement of Maria Yolanda Pini Castelan and translation
7 August 2004
E
E-mail of Review Applicant to Ms Lingeberzins re qualifications
2 September 2004
F
Statement of Review Applicant titled “Why I can’t live in Argentina”
G
Letter from Review Applicant to Ms Lingeberzins “Qualifications as discussed”
H
Letter from New Zealand Red Cross
28 July 2004
J
Statutory declaration of Ms Karina Pini
13 August 2004
K
Statutory declaration of Ms Iris Tripoli
11 August 2004
L
Statutory declaration of Ms Jenny Lozano
12 August 2004
M
Copies of Visa Applicant’s passport and New Zealand visa
N
Statutory declaration of Ms Alexandra Moraitakis
11 August 2004
O
Bundle of documents evidencing Visa Applicant resides in New Zealand and has continuing relationship with Review Applicant
P
Travel Advice by Department of Foreign Affairs and Trade on Argentina
Q
MARA computer print-out referable to Migration Agents
R
Four applications for bridging visa E
5. The Applicant, her mother, Mrs Iris Tripoli, and the Visa Applicant gave oral evidence upon which they were each cross-examined.
the issues
6. As is apparent from the extracts of the Respondent’s reason for the decision to refuse granting the visa, the allegations made as they relate to the conduct of the Visa Applicant are serious. The Review Applicant claims that the Visa Applicant’s conduct, other than overstaying the visitor visa, was as a consequence of advice given to him by a now cautioned migration agent and is accordingly of a less serious nature. Character is at issue.
7. In the event of an adverse character finding being made by the Tribunal it will be necessary for me to consider the available discretionary factors to determine whether in light of his character, related conduct, and the primary and other considerations detailed in Ministerial Direction 21 (“the Direction”), whether the discretion should or should not be exercised in his favour.
chronology
8. The Respondent in its Statement of Facts and Contentions set forth a chronology of relevant events. There is no issue as to the accuracy of such chronology and subject to minor amendments it is as follows:
1972, 4 May Applicant born in Uruguay
1972, 18 May Visa Applicant born in Uruguay
1977, 26 August Applicant granted Australian citizenship after arriving, at the age of 14 months, in Australia with her family
1999, 12 January Visa Applicant arrives in Australia on tourist visa valid for three months
1999, AprilVisa Applicant applies for extension of tourist visa which is granted to 12 January 2000
1999, 22 November Visa Applicant and Applicant commence relationship
2000, 13 January Visa Applicant overstays his visitor visa and becomes illegal in Australia
2000, 22 September Visa Applicant and Applicant marry
2000, 14 October Visa Applicant lodges a Protection Visa Application
2000, 22 October Protection visa refused
2000, November Visa Applicant lodges application for review of refusal of Protection Visa
2002, 12 June Refugee Review Tribunal affirms refusal of Protection Visa
2002, 8 July Visa Applicant lodges section 417 application to Minister
2002, 12 November Minister declines to intervene
2003, 19 January Visa Applicant departs Australia
2003, 26 February Visa Applicant and Applicant lodge spouse visa application
2003, 10 December Visa Applicant interviewed at Australian Embassy in Buenos Aires
2004, 19 May Decision to refuse Visa Applicant’s spouse visa application
legislation and ministerial direction
9. The relevant statutory provisions are:
“501 Refusal or cancellation of visa on character grounds
…
(1)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.
…
(6)For the purposes of this section a person does not pass the character test if:
…
(c) having regard to either of 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”
10. The words “good character”” as used in section 501 of the Act “should be taken to be used in their ordinary sense namely a reference to the enduring moral qualities of a person and not to the good standing fame or repute of that person in the community. The former is an objective assessment apt to be proved as fact where the latter is a review of subjective public opinion” (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94).
11. It is not necessary for there to be a continuance of the incidence of general conduct. It is sufficient if incidences of general conduct be displayed but once or twice, thereby laying “the character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).
12. The Direction sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test. One factor to be taken into account as here relevant is whether the Visa Applicant has shown contempt or disregard for the law including Immigration Law (para 1.9(a) (b)). Thus paragraph 1.9(b) requires consideration to be given to :
“Whether the non-citizen 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 or misleading statement.”
13. If the Tribunal is not satisfied that the Visa Applicant passes the character test the issue for determination, as already indicated above, is whether the decision of the Respondent’s delegate be affirmed or set aside by exercise of the residual discretion under section 501(1) of the Act. In making this determination the Tribunal is to have regard to the above Direction and as here relevant to the following provisions:
“PART 2 – EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24. 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.”
14. The three primary considerations that must be taken into account by decision-makers are the protection of the Australian community and members of it, the expectations of the Australian community and in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
15. With reference to the protection of the Australian community, the Direction provides that the factors relevant to an assessment of the level of risk to the community of a non-citizen entering or continuing their stay include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as with the character issue, makes specific reference to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.
16. The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648; Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766 and McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805). It is important to note the emphasis placed on “the observance of truth”. It is conceivable that false documents and information may be provided without an applicant being aware of the inaccuracy, lack of correctness or falsity. It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information to determine whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage.
“Other considerations
2.17 When considering the issue of visa refusal or cancellation other matters although not primary considerations may be relevant. It is the Governments view that where relevant it is appropriate that these matters be taken into account but that generally they be given less individual weight then that given to the primary considerations. These other considerations may include
(a) the extend of disruption to the non-citizens family, business and other ties to the Australian community;
…
(b) genuine marriage to or de facto or interdependent relationship with an Australian citizen, permanent resident or eligible New Zealand children
· in assessing the compassionate claims of the Australian partner…decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
…
(h) any evidence of rehabilitation and any recent good conduct.
…”
relevant facts and findings of fact
17. The Applicant and the Visa Applicant were each born in Uruguay. Whereas the Applicant’s parents migrated to Australia when she was 14 months of age, the Visa Applicant’s parents took their family to the neighbouring Republic of Argentina where he grew up and received his education. At the time he applied for and received a visa to visit Australia in January 1999 he was self-employed conducting a business of car hire in Buenos Aires.
18. The Applicant is one of three daughters, her sisters being born to her parents after their arrival in Australia. For the period of her primary and secondary education the family lived firstly in suburbs of Sydney and later at Griffith where the father was able to obtain employment. On completing her education and in order to enable the daughters to attend university the family returned to Sydney. Each of the daughters has now obtained tertiary qualifications. The Applicant has a Bachelor of Commerce degree and is now proceeding to obtain her post graduate qualification with CPA Australia. She is employed as a management accountant with Boral Limited. One of her sisters has a science degree and is employed as an analytical chemist while the other has a teaching qualification. The sisters are each married; one has one child, the other two children.
19. The justification for the Tripoli family migrating to Australia has been truly satisfied having in mind the qualifications obtained by the three daughters.
20. The Visa Applicant travelled from Argentina for a three months visit to Australia accompanied by his brother-in-law. He left the conduct of his business with his father and sister, the business later to be sold and part of the proceeds remitted to the Visa Applicant in Australia. Within the period of his first visa he applied to the Respondent for an extension to January 2000. This was granted.
21. In about November 1999 the Applicant and the Visa Applicant first met. This as a result of the Applicant’s father inviting the Visa Applicant to his home. A relationship developed between the couple and by January 2000 the Visa Applicant was invited to take up residence with the Applicant in her parent’s home. They became engaged shortly after and were married in September 2000.
22. At the time of his first meeting the Applicant, the Visa Applicant’s visa was shortly to expire. He informed the Applicant of this situation. They both say that on account of their growing affection for each other the thought of the Visa Applicant leaving Australia was something they did not want to contemplate. The Visa Applicant remained in Australia after his visa expired, the engagement and wedding each occurring whilst he was illegally in the country.
23. Shortly prior to the time of the wedding the Applicant’s mother entreated the Applicant and the Visa Applicant to obtain advice as to the Visa Applicant’s migration status. They noted an advertisement in a Spanish language newspaper by JMP Migration Services and a Ms Jenny Heydee Perez who was “involved in our community” and arranged an appointment with the agent.
24. The couple sought advice informing Ms Perez of their pre-martial status and of the Visa Applicant being illegally in Australia. Instead of telling them that the Visa Applicant would need to leave Australia and make a spouse visa application off shore she, according to the Visa Applicant, (Exhibit B):
“…advised us that my best option was to lodge an application for refugee status, which I did in October 2000. She informed us that while it was likely to be rejected, she would make a submission to the Minister for immigration and that the Minister would almost certainly intervene in our case as we were married. She told us that I would not need not to leave the country (sic) and this would be the best option for me. She did not tell me that lodging the application could result in difficulties with the Immigration authorities if it was considered that I did not lodge agreement application. Nor did she advise that my best option would be to leave the country and apply from overseas.”
25. In the application for a protection visa, which was subsequently lodged, it was stated amongst other things (T4/pp 59, 60, 61):
“…I was threatened and persecuted and harassed because of my involvement in the union, because I used to organise demonstrations and was very involved in the union activities.
…
I know that if I return now they will harass and threaten me and they will try to make me disappear like they did during the years of dictatorship. Besides it would be difficult to stop me from trying to defend the rights of the workers.
…”
In answer to the question “who do you think may harm/mistreat you if you go back?” it was written:
“The police, the authorities under the orders of the Government who want to silence all activities who might interfere with them.”
And in answer to the question “Why do you think they will harm/mistreat you if you go back? It was written:
“Because of my past activities, involvement and participation with the union.”
26. Each of these representations was false and false to the knowledge of the Visa Applicant.
27. The Applicant and the Visa Applicant were each aware of the statements being contained in the application and of their falsity. The application for a protection visa was refused. An application for review was made to the Refugee Review Tribunal by the agent acting on behalf of the Visa Applicant. The Applicant appeared before the Tribunal and “claimed to fear harm if he returned to Uruguay even now some 17 years since he left as a child in 1985” (T96). He further “claimed that his father’s brothers have received threats, that information about disappearances now does not get known outside Uruguay and Uruguay is a small place and everyone knows everyone and that people wanting to hurt his father would hurt the Applicant…” (T96).
28. The application was again refused.
29. The agent wrote on behalf of the Visa Applicant to the Minister seeking his intervention. In her letter Ms Perez wrote inter alia (T9/p101):
“…the Applicant was threatened, persecuted and harassed because of his union involvement; he organised demonstrations and was very involved in union activities.
In spite of the passage of time the Applicant believes that the authorities will harass and threaten him and will try to make him disappear because they do not forget or forgive. He fears harm from the police and the authorities that want to silence all activities that might interfere with them. He fears he will be harmed for his past activities, involvement and participation in the union. The authorities will not protect him because he is seen as working against them. The Applicant further claims that union activities and freedom of association provided for in the constitution are not respected in practice. He can not return to Uruguay either because of his father’s former activities there; he is still wanted and anyone carrying the same name will be persecuted until charged on a pretext and jailed, or until they leave the country.”
30. Again these allegations were false. The application for intervention was declined and two month later the Visa Applicant left Australia and returned to Argentina where he remained until he obtained a visitor visa enabling him to live in New Zealand until December 2004. He took the latter course in order that he might be closer to the Applicant. The Applicant has visited her husband both in Argentina and in New Zealand.
31. The Visa Applicant was on 10 December 2003 interviewed by an officer of the Respondent in Buenos Aires. During the interview he at first maintained the false representations stating (T21/546):
“…that he applied for a protection visa because he had a genuine fear of persecution in Argentina. He explained that prior to his travel to Australia he had problems with the taxi union and that his fear of persecution had existed prior to his departure. He further stated that his reasons for travelling to Australia were motivated by his need to leave Argentina. The Applicant confirmed that he had not disclosed his fear at the time that he applied for his original visa nor at the time that he applied for a further visa.
When asked why he had not disclosed his fear of persecution the Applicant stated that he had not formed an intention to remain in Australia until after he met the sponsor and had married her. When asked why he had lodged the application for a protection visa he initially stated that the application had been lodged with the intention to remain with his wife but later changed his mind and said it was because he had a fear for persecution as he had contacted his father who told him people had been making enquiries about him.”
32. Later he admitted the falsities and acknowledged making the protection visa application in order that he could remain in Australia with his wife.
33. The Visa Applicant now appreciates the seriousness of his misrepresentations and maintains that he was misled by the migration agent Ms Perez, the latter having been recently cautioned by the Migration Agents Registration Authority for improper conduct. He has expressed his regret, remorse and apology to the Tribunal.
34. The Visa Applicant was illegally in Australia from January 2000 to October 2000. During the currency of his protection visa application, the appeal, an application to the Minister and the period prior to his departure, he was in possession of a temporary visa. He did not work whilst in Australia, being precluded from doing so by the terms of his visas. Other than for voluntary assistance to the Red Cross he has not worked whilst in New Zealand.
35. Before the marriage the Applicant purchased a property at 52 Marlborough Street, Smithfield where the couple resided whilst they were together. The Applicant has remained living in the home. As a result of her spending time with the Visa Applicant in Argentina she became pregnant only to experience a traumatic miscarriage sometime after her return to Australia.
character
36. The Visa Applicant overstayed his visitor visa and was illegally in Australia from January 2000 to October 2000. In October 2000 he caused an application for a protection visa to be lodged with the Respondent knowing that it contained false representations. In November 2000 he caused an application for review of the protection visa refusal decision to be made knowingly, relying on the same false representations. He appeared before the Refugee Review Tribunal maintaining the same representations. In July 2002 he caused an application to be made to the Minister maintaining the same false representations. In December 2003 he at first maintained the same representations in an interview in Buenos Aires.
37. It is fair to say that the Visa Applicant, once committed to the making of the representations, may well have had difficulty in extricating himself, this the more so as he had involved his wife in making them. However, I am satisfied that the conduct was serious and that he sought to mislead the Respondent, be it that his motive in doing so was to be with his wife. The irony is that if he had received proper advice, left Australia in January 2000 and then made a visa application, it probably would have been granted.
38. I am for these reasons satisfied that within the meaning of the Act and the relevant authorities the Visa Applicant is not of good character.
exercise of discretion
39. I have already found the misconduct of the Visa Applicant to have been serious. Representations were maintained over nearly three years. It is no justification for him to say that he acted on the advice of the now cautioned migration agent. This may provide an explanation but not an excuse. However, it is clear that the motivation for overstaying the visa and prolonging his residence in Australia by use of the protection visa application stratagem was to enable him to live with his wife. What he sought to do is readily understandable; it is the method used that is not acceptable. Nevertheless accepting the motive, noting the regret and apology given by the Visa Applicant, the standing in which he is held by his friends and others in his community evidenced by references tendered before the Tribunal and there being no other improper conduct recorded against him, the likelihood of recidivism is minimal.
40. It is true, as the Respondent submitted, that granting a visa to the Visa Applicant might be taken by some as condoning immigration malpractice. The need for deterrence in matters like the present is not so much with the luckless applicants but the rapacious agents, who latch upon innocent victims, give false advice and seek to profit from their mischievous conduct. The trauma that the Applicant and Visa Applicant in this matter have experienced may when known to others “in their community” lead to such agents loosing customers if not their registration.
41. The Applicant is a well qualified professional holding a responsible position as management accountant and presently proceeding to a post graduate membership of CPA Australia. She would experience great difficulty in seeking to avail herself of her qualifications in Argentina or Uruguay. It would be to the detriment of commercial activity in Australia if she were not able to maintain her professional standing in this country. There is evidence before the Tribunal of the Visa Applicant having employment available to him in Australia with his brother-in-law. Admittedly the Visa Applicant has acted in breach of the Act and might be seen as benefiting from the same Act if a visa is granted to him. However, the Australian community might well in view of the matters discussed above expect that a visa would not now be withheld.
42. There is not any issue as to the genuineness of the relationship existing between the Applicant and the Visa Applicant. Even be it the Applicant was a party to the deception in making false representations, she like the Visa Applicant was acting on advice given to them by a registered migration agent, a person known within the Spanish speaking community. Her participation, whilst a relevant factor, does not minimise hardship she would experience if her husband is unable to enter Australia in live with her. She has her parents and her sisters living nearby to her in Australia. Her mother, by occupation a clerk, has high blood pressure and diabetes. Her father is disabled from a back injury. They are, on the evidence, a close knit family. The Applicant has her occupation and her training. She has her house. She has lived in Australia since she was 14 months old. She is not fluent in Spanish. She cannot sleep, her studies have been affected and she is taking anti-depressants.
decision
43. The nature of the conduct of the Visa Applicant is to be considered in the context of the emotional state in which the Applicant and Visa Applicant found themselves. The misconduct was serious but whilst breaching the Act was not of the same nature as other acts of misconduct itemised in the Direction. Conduct of a like nature will not be repeated. It is more likely that the making of such representations will be discouraged if people are not seen to consult such agents as Ms Perez and learn to not rely upon the advice of unscrupulous persons. I have no doubt that the Australian community would not expect a visa to be withheld in the circumstances of this matter.
44. I conclude these reasons by noting with reference to the reasons earlier referred to given in support of the refusal decision under appeal that:
· the Visa Applicant and the Applicant accept full responsibility for their erroneous conduct,
· the initial misrepresentation was anything but premeditated,
· residing in Uruguay or Argentina would pose significant professional, social, family and cultural difficulties for the Applicant.
45. For the reasons herein before set forth the decision under review is set aside. The application is remitted to the Respondent with a direction that the available discretion be exercised in favour of the Visa Applicant.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, Deputy President
Signed: Neil Glaser
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AssociateDate/s of Hearing 6 and 7 September 2004
Date of Decision 23 September 2004
Solicitor for the Applicant Ms B Lingeberzins
Solicitor for the Respondent Mr M Allatt
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