Priori and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1288
•22 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1288
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/131
GENERAL ADMINISTRATIVE DIVISION ) Re CLAUDIA PRIORI Applicant
And
MINISTER for IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S. Webb, Member Date22 December 2005
PlaceCanberra
Decision The decision under review is set aside. The Tribunal remits the matter to the Respondent with a direction that Franko Cenaj passes the character test and his application for a Subclass 300 (Prospective Marriage (Temporary)) visa should not be refused pursuant to subsection 501(6) of the Migration Act 1958.
..............................................
Mr S. Webb, Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)A2005/131
GENERAL ADMINISTRATIVE DIVISION ) Re CLAUDIA PRIORI Applicant
And
MINISTER for IMMIGRATION AND MULTICUTURAL AND INDIGENOUS AFFAIRS
Respondent
DIRECTION [2005] AATA 1288
Tribunal Mr S Webb, Member Date30 January 2006
PlaceCanberra
Direction The Tribunal directs the Registrar, pursuant to sub-s.43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:
1. at page one of the decision delete the phrase: “subsection 501(6)” and insert in lieu: “section 501”.
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MemberCATCHWORDS
MIGRATION – Subclass 300 (Prospective Marriage (Temporary)) Visa - refusal - character test - past and present general conduct - use of false name when seeking protection in Belgium - issue of criminal association for purposes of travelling to Australia - meaning of "association" - use of false or bogus documents to enter Australia - application for Protection Visas refused – evidence of countervailing factors - recent good conduct and rehabilitation –decision set aside
Migration Act 1958 ss 233, 234, 235, 499, 501
Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
REASONS FOR DECISION
22 December 2005 Mr S. Webb, Member 1. By this application Claudia Priori is seeking review of the Respondent Minister’s decision to refuse to grant her de facto husband and fiancé, Franko Cenaj (“the visa applicant”), a Subclass 300 (Prospective Marriage (Temporary)) visa (“the visa”). The Minister’s decision was made on the basis that the visa applicant did not pass the “character test” as a result of his association with criminal elements and deficiencies in his past general conduct, and he had failed to persuade the Minister to exercise her residual discretion pursuant to s 501 of the Migration Act 1958 (“the Act”).
issues for determination
2. There are two issues arising for determination by the Tribunal:
(a)Does the visa applicant pass the character test set out at subs 501(6) of the Act? And, if not
(b)Are there sufficient grounds to justify exercising the residual discretion that is conferred on the decision maker under subs 501(1) in the visa applicant’s favour?
legislation, ministerial direction and legal principles
3. The applicable statutory provisions are:
“Section 501
(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.
…
Character test
(6) For the purposes of this section, a person does not pass the ‘character test’ if:
…
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) 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; or
…
Otherwise, the person passes the ‘character test’.
…”
4. “Ministerial Direction – Visa Refusal and Cancellation under Section 501 – No.21” (“the Minister’s Direction”) given under subs 499(1) sets out directions that must be complied with pursuant to subs 499(2A).
factual background and chronology
5. The following chronology and facts are not in dispute and can be briefly noted.
6. On 5 December 1983 the visa applicant was born in Zhub-Gjakove, Kosovo. He is of Albanian ethnicity and is of the Catholic faith.
7. In or about 1997 the visa applicant moved with his parents and only sibling, Valentin Cenaj (“Mr Cenaj”), to Bujanovac in the Preshevo Valley, Southern Serbia.
8. In 1999 the visa applicant and Mr Cenaj fled from Bujanovac at the urging of their parents in order to escape persecution at the hands of the Serbian military. They travelled by truck to Belgium without their parents but in the company of other persons fleeing from Bujanovac and surrounding regions, arriving 3 days later or thereabouts.
9. On 30 September 1999 the visa applicant was issued with a certificate in the name of ‘Albert Shuti’ by the Belgian authorities. The certificate states that the visa applicant entered Belgium on 25 September 1999 and was permitted to remain in Belgium until 10 April 2000 (AT32 folios 179 and 180). On the same day, Mr Cenaj was issued with a certificate in the name of ‘Syla Bujar’, stating that he entered Belgium on 25 September 1999 and was permitted to remain in that territory until 10 April 2000 (BT39 folios 203-206). On the evidence it is unclear precisely when the visa applicant and Mr Cenaj entered Belgium.
10. On or about 15 November 1999 the visa applicant and Mr Cenaj entered Australia at Sydney International Airport using bogus documents. They were assisted to do so by a third person, known only as ‘Arif’. On arrival they took a train to Brisbane and were accommodated by members of the Albanian community in that city.
11. On 3 December 1999 the visa applicant lodged an application for a protection visa in his real name (AT4).
12. On 9 March 2000 the visa applicant was granted a Subclass 050 (Bridging E) visa applying ‘no work’ conditions. On 16 October 2000 the ‘no work’ visa conditions were removed.
13. On 22 November 2000 the visa applicant’s application for a protection visa was refused (AT12). The visa applicant sought review of that decision by the Refugee Review Tribunal.
14. On 5 January 2001 the visa applicant moved from Brisbane to Adelaide with Mr Cenaj.
15. On 29 June 2001 Mr Cenaj married an Australian citizen, Mrs Tara Cenaj (nee Colledge).
16. On 26 November 2001 the Refugee Review Tribunal decided to affirm the decision to refuse the visa applicant a protection visa on the basis that the situation in Kosovo had “radically changed [for the better]” since the visa applicant’s departure in 1999 (AT14). On 23 December 2002 the application by the visa applicant for review of the Refugee Review Tribunal’s decision was dismissed by the Federal Magistrates Court. The visa applicant appealed to the Minister.
17. On 10 February 2003 and periodically thereafter until he departed Australia the visa applicant was granted a Subclass 050 (Bridging E) visa applying ‘no work’ conditions.
18. In May 2002 the visa applicant met Ms Claudia Priori (“the applicant”). On or about 1 March 2003 the visa applicant and the applicant began living together. They were engaged to be married on 24 November 2004.
19. On 12 February 2004 the Minister wrote to inform the visa applicant that she had decided not to exercise her power under s 417 of the Act (AT18).
20. On 23 March 2004 the visa applicant departed Australia (AT2) on an UNMIK passport (Exhibit R1) and travelled to Italy with the applicant in the company of Mr Cenaj and Tara Cenaj. On 25 March 2004 the visa applicant lodged an application for a Subclass 300 (Prospective Marriage (Temporary)) visa in Rome. However, as the visa applicant was not permitted to remain in Italy that application was transferred to Athens (AT21). Soon thereafter the visa applicant and Mr Cenaj travelled to Albania, where they remain.
21. On 27 October 2004 written notice of intention to consider refusal of the visa application under s 501 of the Act was sent to the visa applicant (AT28). The visa applicant responded to that letter through Clarke Radin Lawyers (AT33). In a letter dated 5 May 2005 the visa applicant was notified that a delegate of the Minister had decided to refuse the visa application (AT2). On 25 May 2005 an application was lodged for review of that decision by the Tribunal.
22. At the time of his entry to Australia in November 1999 the visa applicant did not speak English and was functionally illiterate.
23. The visa applicant has no criminal record in Australia or Albania.
consideration
24. Making this decision I have carefully considered all of the material placed before me, including the oral evidence of the applicant, the visa applicant, Mr Cenaj, Tara Cenaj, Arben Shyti and Dr Guiseppe Neroni (General Practitioner), the submissions made by the parties, the relevant caselaw and legislation. When taking the evidence of the visa applicant and Mr Cenaj by telephone, the Tribunal was assisted by an interpreter (who was sworn) in the Albanian language.
25. Both parties informed me during the hearing that each would be relying on the contents of their respective statements of facts and contentions as amended and filed. I note that the Respondent’s statement does not contend that the visa applicant failed to pass the character test on the basis that he had an association with a person whom the Minister reasonably suspects was involved in criminal conduct pursuant to paragraph 501(6)(b) of the Act, relying instead on sub-paragraph 501(6)(c)(ii) concerning his past and present general conduct. Nevertheless, the issue of association was plainly in issue and was addressed in the applicant’s statement of facts and contentions. Both parties addressed that issue in oral submissions. It is to that issue I now turn.
association
26. The ‘association’ in issue concerns the dealings and relationship between the visa applicant, Mr Cenaj and a person known only as ‘Arif’ who, it is alleged, arranged for the brothers to travel to Australia using false passports. The Minister’s Direction provides at paragraph 1.5 that the word ‘association’ “encompasses a very wide range of relationships including having an “alliance” or a “link” or “connection” and regard may be had to the degree and frequency, duration and nature of the association when determining whether criminal association has occurred.
27. The applicant submitted that the visa applicant did not have an ‘association’ within the meaning of the Act as any association he may have had with ‘Arif’ was neither frequent, permanent nor of an abiding nature nor for profit, being a ‘one off’ contact for the purpose of procuring travel documents. In the Respondent’s submission the association between the visa applicant and ‘Arif’ may have been for the sole purpose of travelling illegally to Australia but it involved a degree of planning and decision making over a period of weeks in 1999 on the part of the visa applicant that places the association within the meaning ascribed by the Minister’s Direction.
28. No evidence was adduced by the Respondent in relation to the alleged activities of ‘Arif’. Nonetheless, I accept that ‘Arif’ visited the camp in which the visa applicant was resident in Belgium in 1999 soliciting for people seeking ‘safe’ refuge in another place. I accept the evidence of Mr Cenaj that he met ‘Arif’ in the camp in or about October 1999 in relation to ‘Arif’s’ offer of travel to “a safer place” and informed ‘Arif’ that he and the visa applicant were interested but had no money. He asserted that he informed ‘Arif’ of their circumstances and of the existence of the land in Bujanovac that was owned by his parents, who he assumed were dead. Mr Cenaj’s evidence was that ‘Arif’ departed and return approximately one month later with a document concerning the transfer of the land in Bujanovac for him to sign, which he did, on the basis that ‘Arif’ would arrange for them to travel to Australia. Subsequently, ‘Arif’ arranged their destination, bogus passports, flights and all other arrangements for the visa applicant and Mr Cenaj to travel to and enter Australia. On that basis I am persuaded to conclude that ‘Arif’ was a person reasonably suspected of involvement in criminal conduct.
29. Mr Cenaj asserted that neither he nor the visa applicant had any knowledge of Australia and had no prior intention to travel to Australia and knew nothing of international travel or Australian laws at that time, having only very limited education and having never previously travelled outside the region in which they lived with their parents. Mr Cenaj stated that neither he nor the visa applicant had any knowledge of the travel arrangements prior to their departure. ‘Arif’ made all the arrangements and accompanied them on the aeroplane. They did not know what their destination was in Australia and they did not know the ports they transited en route to Australia. They did not know and were not given information about the visas or passports that were used for entry into Australia. They did not recall the names in which those documents were issued, and did not complete Passenger Arrival forms en route to Australia – that task was completed by ‘Arif’. Prior to arrival in Sydney ‘Arif’ handed them the passports used for entry and took these back following completion of the immigration procedures, whereupon he left them in the company of another man who arranged for them to travel to Brisbane by train. They did not meet or have any further dealings with ‘Arif’. That evidence was not challenged by the Respondent and I accept it.
30. The oral evidence given by the visa applicant in relation to the circumstances of his travel to Australia in 1999 is consistent with evidence given before the Refugee Review Tribunal. The visa applicant was 15 years old in October and November 1999. He stated that he was fearful in the refugee camp in Belgium and he was “sick”, by which I understand that he was suffering from psychological problems following the reported destruction of his home in Bujanovac and the disappearance, and presumed violent death, of his parents. His evidence was that Mr Cenaj was akin to a father figure for him following the death of their parents and it was Mr Cenaj who dealt with ‘Arif’. The visa applicant asserted that he saw Mr Cenaj talking with ‘Arif’ in the camp on only one occasion and had no direct dealings with ‘Arif’ in relation to any arrangements for travel to Australia. The visa applicant gave evidence that he did not sign any documents in relation to the arrangement. Under cross-examination, the visa applicant agreed that he and Mr Cenaj had discussed ‘Arif’s’ proposal for them travel to Australia and he had agreed to Mr Cenaj’s suggestion that they could “go and live somewhere safer and not live in fear anymore [and] … give him [Arif] the land [in Bujanovac] and go and live far away”. I accept that evidence, which was not seriously challenged by the Respondent, and so find.
31. It is plain enough that there was an arrangement between Mr Cenaj and ‘Arif’ concerning the visa applicant to the extent that ‘Arif’ arranged documents and travel to Australia for the visa applicant, and accompanied him and Mr Cenaj during that travel. The question is whether that arrangement constitutes a criminal association for the purposes of the Minister’s Direction and s 501 of the Act. For such an association to exist there must be a relationship between the visa applicant and ‘Arif’ that is within the “very wide range of relationships” contemplated by the Minister’s Direction. I am satisfied that the relationship between the visa applicant and ‘Arif’ is one that may fairly be described as a tenuous, indirect and exploitative relationship for profit between a child victim and an adult perpetrator. That relationship and those contemplated by the Minister’s Direction must be considered in relation to the test set out at subs 501(6) of the Act and the purpose of that test within the scheme of the Act.
32. Is the relationship between the visa applicant and ‘Arif’ one that can be characterised as an ‘alliance’, ‘link’ or ‘connection’ within the meaning of ‘association’ for the purposes of the Minister’s Direction and subparagraph 501(6)(b) of the Act? I am satisfied that it is not. Plainly, there is an indirect relationship between the visa applicant and ‘Arif’ that is described by the arrangement that was made and the activity that ensued. However, having regard to the degree, frequency, duration and nature of the visa applicant’s involvement with ‘Arif’ I am satisfied that he did not have an alliance, link or connection with ‘Arif’ for present purposes.
33. The visa applicant’s involvement with ‘Arif’ cannot be fairly described as a criminal association in which the parties conspired with common purpose to undertake criminal conduct, even though that was the result. I accept the visa applicant’s evidence that he had no knowledge of international travel or the migration laws of Australia or any other country for that matter. The visa applicant was not directly involved in discussions with ‘Arif’. Nor is the visa applicant’s involvement with ‘Arif’ characterised by the exercise of free will or choice in the circumstances. In effect he was a naïve and ignorant party to an arrangement made by adult others, including Mr Cenaj, on whom he relied as a father figure and whose advice he followed, at a time of significant psychological trauma and vulnerability.
34. In the circumstances I am reasonably satisfied that the visa applicant does not fail the character test on the basis of an association with a person involved in criminal conduct pursuant to paragraph 501(6)(b) of the Act and so find.
past and present general conduct
35. In the Respondent’s submission the visa applicant fails to pass the character test as a result of his past general conduct as follows:
(a)The visa applicant entered Australia using a false passport (an offence under s 234 of the Act);
(b)He obtained a false passport and entered Australia with the assistance of a people smuggler (s 233 of the Act sets out offences in relation to people smuggling);
(c)He obtained permission to remain in Belgium on the basis of a false identity provided to Belgian authorities; and
(d)He engaged in work contrary to the conditions of the Subclass 050 (Bridging E) visa issued on 10 February 2003 (s 235 of the Act sets out offences in relation to work in breach of visa conditions).
36. The Minister’s Direction states at paragraph 1.7 that “decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct” when determining whether a non-citizen is not of good character pursuant to paragraph 501(6)(c) of the Act. The Minister’s Direction relevantly states:
“1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard for the law or for human rights. This could include…
Involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, “white collar” crime, fraud, breaches of immigration law; or
...
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character…”
37. In the applicant’s submission the circumstances in which the visa applicant entered Belgium and Australia and his age and level of education at the time demonstrate strong countervailing factors that are sufficient to offset the Respondent’s contention that his past general conduct constitutes a failure to pass the character test. For reasons that will appear, I agree.
38. It is accepted that the visa applicant provided the Belgian authorities with a false identity when registering for certification in that territory in 1999. He claims that he did so following the advice of adults from Bujanovac and the surrounding region in whose company he fled to Belgium. He was 15 years old at that time. He was fleeing a war zone with Mr Cenaj (who was 19 years old at the time) having been sent away by his parents who remained in Bujanovac. In the applicant’s submission the use of false identities by persons in such dire circumstances is widely recognised and persons seeking asylum in good faith are recognised as being in a special situation as regards the use of false documents. Reference was made to a paper by Dr Guy Goodwin-Gill entitled “Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection” and summary conclusions of the Geneva Expert Round Table dated 8-9 November 2001.
39. I am satisfied that the visa applicant’s young age and the dire circumstances in which he fled from his home in Bujanovac without the benefit of parental accompaniment, are factors that led him to follow the advice he was given by adults in whose company he found himself prior to registering with the Belgian authorities concerning the use of a false identity. Those are strong countervailing factors against which his provision of false identity details to Belgian authorities must be considered. If that conduct reveals anything about the character of the visa applicant, it is that he did what any child could be expected to do in such traumatic and frightening circumstances: he deferred to his elders and, naïvely, followed their advice. Considering all of the circumstances I am persuaded to conclude that the visa applicant’s provision of false identity details to the Belgian authorities is not conduct that points to any deficiency of good character.
40. In the Respondent’s submission the fact that the visa applicant failed to inform Australian authorities of his use of a false identity in Belgium during the processing of his application for a protection visa, and related proceedings, indicates a disregard for the importance of truthfulness in his dealings with Australian officials, whereby the visa applicant placed his personal interests above those of the Australian community he seeks to join. The fact is the visa applicant informed Australian authorities on 29 November 2004, five years after arriving in Australia, that he used a false identity in Belgium (AT29). The visa applicant explained that deficiency by saying that he did not know that he was required to provide that information, as he was never asked directly about it. Consideration of the documents, especially documents in AT10 and AT11, indicates that the visa applicant informed his (then) lawyer, Mr Consentino, and Australian authorities that he provided his real name to the Belgian authorities. Plainly, that was not the case and the visa applicant attempted to conceal the falsehood that he had employed in Belgium.
41. The applicant gave evidence that after receiving notice of the intention to refuse his visa application on character grounds the visa applicant first informed her that he remembered using a false identity in Belgium, but neither he nor Mr Cenaj remembered the false name or details that he had used. He had been unable, therefore, to provide that information to Australian authorities. She stated that the visa applicant was frightened of giving wrong information about the false identity to the Australian authorities on the basis that it may hurt his application for a protection visa. That evidence, I accept, was truthfully given.
42. The need for non-citizens to demonstrate a high degree of honesty and integrity in their dealings with Australian immigration authorities has been the subject of comment in decided cases to which the parties have made reference (see Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984). However, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 the Full Court of the Federal Court said at paragraph 8:
“The concept of ‘good character’ in s 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.”
That decision has been applied in subsequent decisions of the Tribunal (see Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, for example).
43. The visa applicant and the applicant in these proceedings concede that he entered Australia using bogus documents with the assistance of ‘Arif’. I have found that the visa applicant did not have a criminal association with ‘Arif’. Nonetheless, the fact is that he was provided with a false passport and entered Australia using that document. It can be inferred that he provided false information in forms and to Commonwealth officials on arrival in Australia. Those are serious offences under s 234 of the Act that carry penalties of up to 10 years imprisonment. The majority of the Australian community would consider such conduct to be reprehensible.
44. In the Respondent’s submission the visa applicant worked in Australia in breach of conditions attaching to the Subclass 050 (Bridging E) visa that was issued on 10 February 2003. However, there is scant evidence to support the Respondent’s contention. The only evidence is to be found in a report by Dr Neroni (Exhibit A3), which he subsequently sought to correct at the urging of the applicant, and a reference made by the visa applicant’s then lawyer (AT33 folio 196).
45. Dr Neroni was cross-examined on this point and referred to his clinical notes. I accept Dr Neroni’s evidence that his clinical notes related to a conversation he had with the applicant about her request for a report on the visa applicant to assist his application for a visa, and that he incompletely recorded what he was told by the applicant (there is no clinical note in relation to the visa applicant being employed as a painter, for example).
46. The visa applicant, Mr Cenaj and Mr Shyti all gave oral evidence that the visa applicant did not work in breach of his visa conditions. To some degree the conflicts in the evidence may be explained by the belated concession by the Respondent that, in fact, the ‘no work’ visa condition was removed on or about 16 October 2000 and reimposed on 10 February 2003. Dr Neroni’s evidence and the reference made by the visa applicant’s (then) lawyer (Clark Radin Lawyers) in the letter dated 9 February 2005 (AT33 folio 196) does not assist in establishing when or for what duration the visa applicant worked in Australia.
47. On that evidence I am not persuaded to conclude that the visa applicant worked in breach of the conditions attaching to his visa. I note in passing that the documents reveal that the visa applicant was a student at the Marden College during the period in question from 10 February 2003. There is evidence that he obtained Centrelink benefits in the form of a New Start Allowance and subsequently a Student Allowance. However, no documents were placed before me in relation to claims made by the visa applicant for such allowances or payments that were made to him by Centrelink.
48. Thus it can be seen that the visa applicant engaged in ‘bad conduct’ (obtaining and entering Australia using bogus documents, providing false information to immigration officials on arrival in Australia and seeking to conceal his use of a false identity in Belgium). However, in order to determine whether the visa applicant fails the character test on the basis of that past general conduct in compliance with the Minister’s Direction it is necessary to consider any countervailing factors relevant to the ‘bad conduct’ and any recent ‘good conduct’.
49. I accept that a person who claims to be in fear for their life and safety and lies in an effort to advance a claim for protection, may lie out of fear without necessarily laying bare any enduring deficiency of integrity or character. In this case, that is the most powerful and persuasive countervailing factor against which the visa applicant’s ‘bad conduct’ must be considered. At the time the visa applicant obtained assistance from ‘Arif’ to enter Australia using bogus documents in November 1999 he was 15 years old. To the best of his knowledge at that time his home had been destroyed and his parents killed. He was psychologically traumatised. He was reliant on Mr Cenaj for support and leadership in relation to decisions they made in attempting to improve their circumstances. I note that the visa applicant understood that he would not be permitted to remain in Belgium once his temporary visa expired, whereupon he feared that he would be forced to return to Kosovo. I accept that that fear was a significant and powerful vulnerability that left the visa applicant and Mr Cenaj open to exploitation by ‘Arif’.
50. I do not accept the Respondent’s submission that the visa applicant, by his actions, demonstrated a disregard for law. I am satisfied that his actions were those of a traumatised child in fear for his life and safety clutching at the offer of safe haven far away in a country about which he had little knowledge and without knowledge of the offences that would be committed in pursuit of that end.
51. I accept the evidence of the applicant, the visa applicant and Dr Neroni that the visa applicant’s psychological disturbance persisted during the time he spent in Australia and that he obtained treatment for it from medical practitioners in Brisbane and Adelaide. The visa applicant underwent a psychological assessment on 24 January 2002 which indicated that elements of psychological disturbance were on-going and he feared being forced to return to his home region in Kosovo under Serbian rule (AT15).
52. With regard to ‘good conduct’, the visa applicant applied for a protection visa in his real name on 3 December 1999, approximately two weeks after arriving in Australia. In doing so he did not attempt to conceal the fact that he had entered Australia using bogus documents with the assistance of other parties. I am satisfied that he complied with conditions attaching to his Bridging E visa. When his application for protection was refused and all avenues of appeal had been exhausted, he followed the advice he was given by a Departmental Compliance Officer and left Australia in order to apply for a visa that would permit him to return to marry his fiancée, the applicant in these proceedings.
53. During the time the visa applicant spent in Australia he formed strong attachments within the Albanian community in Brisbane and Adelaide, as indicated by the statements tendered in Exhibit A1 in his favour. He also established strong bonds with members of the applicant’s family. I accept the applicant’s evidence that the visa applicant assisted her parents, who suffer ill-health, in the performance of activities that were difficult for them, such as driving them to medical appointments.
54. The weight of the evidence persuades me to conclude that the countervailing factors and ‘good conduct’ of the visa applicant out-weigh his otherwise reprehensible conduct. That conclusion, I am satisfied, is consistent with what the Australian community would expect in the circumstances and the balance that is required, applying the principles in the authorities to which I have been referred. I am persuaded to conclude that the visa applicant does not fail the character test on the basis of his past general conduct and so find.
55. That being so, the decision under review is set aside and the matter is remitted to the Respondent with the direction that the visa applicant does not fail to pass the character test under s 501 of the Act.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed:
AssociateDates of Hearing 12 – 13 December 2005
Date of Decision 22 December 2005
Representative for the Applicant Marion Lê
Marion Lê Consultancy
Solicitor for the Respondent Neil Arora
Clayton Utz
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