Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs

CATCHWORDS – IMMIGRATION

– Spouse Visa – character test – past and present conduct – criminal convictions before and after arrival in Australia – false and misleading information – harm to and expectations of the Australian community – best interest of the children – decision affirmed.

Migration Act 1958 ss. 20, 31, 499, 501 and 501G
Migration Regulations 1994 Schedules 2 and 4
Crimes Act 1958 (Vic) ss. 72 and 73

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)

Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Goonewaradana and Minister for Immigration and Multicultural Affairs [2001] AATA 762
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353

DECISION AND REASONS FOR DECISION [2003] AATA 1240

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2003/1024
GENERAL ADMINISTRATIVE DIVISION     )

Re MARTHA RUANO

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                  Deputy President S A Forgie
Date:  9 December, 2003
Place:  Melbourne

Decision:The Tribunal affirms the decision of the respondent dated 27 August, 2003 and notified to the applicant on 17 September, 2003.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 17 September, 2003, the applicant, Mrs Martha Ruano, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) dated 27 August, 2003. Notice of that decision was given to Mrs Ruano on 17 September, 2003. It was a decision to refuse Mrs Ruano a Class UK (Extended Eligibility) subclass 820 (Spouse) visa and a Class BS (General Residence) subclass 801 spouse visa (“the visas”) on the grounds that she did not pass the Character Test pursuant to s. 501 of the Migration Act 1958 (“the Act”).

At the hearing, Mrs Ruano was represented by Mr O’Donoghue of counsel and the Minister by her solicitor, Mr Wee. The documents prepared pursuant to s. 501G of the Act were admitted in evidence together with statements by Mrs Ruano, Ms Lynne Matheson, Ms Alison Whitehead and Mr John Leon, Client Application and Status Reports and a bundle of documents including references, country information and psychologist reports. Mrs Ruano gave oral evidence in support of her case together with her husband, Mr Leon, and Ms Matheson and Ms Whitehead.

THE ISSUES

The first issue is whether Mrs Ruano passes the character test set out in s. 501(6) of the Act. If she does not pass that test, the second issue is whether the discretion in s. 501(2) should be exercised to refuse to grant her the visa for which she has applied.

BACKGROUND

Many of the factual matters were not in dispute between the parties. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.

Childhood

Mrs Ruano was born on 8 May, 1957 in Bogota in Colombia and is a Colombian national. She has two brothers but both have died. One brother died when he was very young and her other brother died about five years ago from cancer and a drug and alcohol related disease. The children were raised by their mother, who had been orphaned at a young age and who grew up in an orphanage. Mrs Ruano never knew her father. Her mother had to work to care for her family. In order to do so, she would leave her children locked in a small, dark room while she cooked and cleaned in a restaurant. Mice inhabited the room and for a number of reasons, Mrs Ruano was very frightened in the room. Mrs Ruano also has memories of being assaulted physically and sexually during her childhood as well as going hungry.

Mrs Ruano’s schooling was very limited as she attended only three years of primary school. Her mother could not afford to give her any greater education. Mrs Ruano is able to read and write in Spanish but only to a basic level and is not fluent in English.

Relationships prior to coming to Australia

When she was 17 years of age, Mrs Ruano commenced a relationship with a man, who was 16 years her senior. On the basis of her oral evidence in cross-examination, I find that she became pregnant with the first of her daughters, Jasmin, and had her second daughter, Marcela, in Colombia. Jasmin was born on 4 June, 1976 and Marcela was born on 30 June, 1978. Mrs Ruano’s husband left her while she was pregnant with Marcela. Facing dire difficulties, Mrs Ruano turned to her mother in Bogota, who helped her with the children.

While the children were still very young, Mrs Ruano then met another man, Carlos Alvarabo. They travelled to New York and that occurred in 1978 or 1979 when Jasmin was two years old. Mrs Ruano saw New York as an opportunity to make money as she had been struggling financially in Bogota. She left her children with her mother during her time in New York. Mrs Ruano did not enter the United States of America (“USA”) lawfully.

Mrs Ruano considers her relationship with Mr Alvarabo to be the worst relationship of her life. She states that he took drugs, introduced her to crack, hit her and cut her as well as being a very dominating and violent person. As a result of his violence to her, she went to hospital seeking treatment on three occasions. Mrs Ruano was addicted to crack, which she smoked, and also drank heavily as did Mr Alvarabo. They lived in Queens in New York where she felt herself surrounded by drugs. She could spend up to two or three weeks in her room taking drugs. She and Mr Alvarabo needed money to support their habit.

Mrs Ruano and Mr Alvarabo had one child; a daughter named Marta, who was born in 1981 in Bogota. Marta suffered possible brain damage and is severely disabled as a result of convulsions when she was about two years of age. As they could not care for her, Marta has lived with her paternal grandparents since she was about six. Mrs Ruano has not seen her for some nine years.

Mrs Ruano met her third partner in New York. They travelled together to Bogota when their daughter, Jenifer, who was born on 20 January, 1994 in New York, was about one year old. Their son, Miquel Angelo, who was born on 9 January, 1992, was born in Colombia. They did not live together but enjoyed what Mrs Ruano described as a “casual relationship”.

Mrs Ruano married her fourth partner in 1995 and divorced him in Colombia on 15 July, 1998.

Coming to Australia

Mrs Ruano first travelled to Australia on 22 January, 1998 when she had a three month visitor’s visa. She came on her own and left on 18 April, 1998. A few months later, she applied once more for a visitor’s visa and, having been granted it, returned to Australia on 19 October, 1998. This time she travelled with her daughter, Marcela, and her son, Angelo. On the Incoming Passenger Card that she signed on that day, Mrs Ruano did not declare that she had criminal convictions and stated that she had come to Australia on holidays.

Relationships in Australia

Mr Leon was born in Peru on 31 January, 1971 and speaks both Spanish and English fluently. Together with his half brothers, he was raised by his mother and grandmother and completed his secondary education in that country. When he was about 17 years of age, he married Marizol Zapata and they have one child. Soon after his marriage, he separated from her and migrated to Australia where he joined his father and his five step brothers. At first, he learned English but after three or four months secured employment. Mr Leon found a unit in which to live and then applied for his wife to join him in Australia. His application was unsuccessful. He and his wife divorced about a year after his arrival in Australia.

Two or three years later, Mr Leon married Panayota Kalogeropolous. They do not have children and were divorced a year of two after their marriage.

In 1997 or 1998, Mr Leon was granted Australian citizenship. He married Mrs Ruano on 5 March, 1999. For fourteen years Mr Leon, who is a welder, was employed to repair containers first with one company and then with another. At the moment, he is unemployed. His father and three of his step brothers live in Melbourne and two step brothers live in Sydney. He is very close to his father.

Application to reside permanently in Australia

On 8 April, 1999, Mrs Ruano lodged an application to remain permanently in Australia. In her application, she disclosed three of her four daughters as she omitted reference to her daughter, Marta. She stated that her daughter, Jenifer, would remain overseas. She answered “No” to question 40 as to whether she had been convicted of any crime or offence in any country or been removed or deported from any country (G documents, page 106).

Criminal convictions in the United States

Mrs Ruano committed a number of offences during her time in New York and these are listed below. On the basis of her evidence, and there is no other, I find that she committed them primarily in order to feed her drug habit. She also committed them to try to obtain money to send to her mother in Bogota as she found difficulty in obtaining work without documents and having regard to her drug affected state. During her time in New York, Mrs Ruano used approximately 20 aliases but she denies using the alias of “Mary Watson” and is not sure whether she used the name “Beatriz Arquez de Caballero”.

The offences of which Mrs Ruano has been convicted in the United States in the name of Raquel Rivera according to the records sent by the Federal Bureau of Investigation (“FBI”) in the USA to the Australian Embassy in Washington and then to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) are:

Date of offence And Date of conviction(s)	Court	Conviction	Sentence
18 March, 1980 19 March, 1980	New York Criminal Court	Grand Larceny Disorderly Conduct	Convicted on plea Conditional discharge
23 September, 1981 24 September, 1981	Criminal Court Queens	Petit Larceny Possession of Stolen Property	Convicted on plea 30 days
20 July, 1984 1 April, 1996	New York County Supreme Court	Grand Larceny Possession of Stolen Property	Sentence Pending Sentence Pending
1 October, 1993 13 January, 1994	Criminal Court Kings	Petit Larceny	Probation 1 year (sentenced 23 February, 1994)
7 December, 1993 24 February, 1994	New York Criminal Court	Jostling Hand Near Pocket	Conditional Discharge Community Service 2 days
5 January, 1994 9 September, 1994	Kings County Supreme Court	Grand Larceny Criminal Possession of Stolen Property	Convicted but sentence not recorded in G documents Convicted but sentence not recorded in G documents

Criminal charges in the United States

The offences in relation to which Mrs Ruano has been charged in the USA and in relation to which their disposition is unreported in the G documents are:

Date of offence (Name in which arrested)	Place in which alleged to have been committed	Offence	Final disposition (if recorded)
11 January, 1979	Miami	Grand Theft	Arrested but disposition unknown
1 November, 1979 (Carmel Maria Torres)	Miami	Grand Theft	Disposition to another agency
7 November, 1979 (Carmel Maria Torres)	Miami	Accessory after the fact- 2^nd degree murder Resisting arrest	To County
14 February, 1980 (Raquel Rivera)	Queens	Jostling	Bench warrant issued
5 September, 1980 (Raquel Rivera)	Queens	Attempted Murder Criminal Possession of Weapon: loaded gun Reckless endangerment Assault with intent to cause bodily harm	Dismissed (24 September, 1981) Dismissed (24 September, 1981) Dismissed (24 September, 1981) Not recorded
21 April, 1984 (Rose Chicon)	Philadelphia	Criminal attempt/theft by unlawfully taking or disposing	Unreported
26 July, 1984 (Raquel Rivera)	New York	Jostling hand near pocket	Unreported
5 November, 1984 (Raquel Rivera)	New York	Petit Larceny	Bench Warrant issued
10 August, 1985 (Carmen Maria Torres)	Chicago	Theft	Arrested but disposition unknown

23 August, 1985 (Carmen Torres)	Atlantic City	Trespassing Larceny	Dismissed
14 September, 1986 (Raquel Rivera)	Queens	Grand Larceny Possession of Stolen Property	Bench Warrant issued
23 July, 1988 (Carmen Maria Torres)	Atlantic City	Larceny Conspiracy to Commit Larceny	Dismissed
17 September, 1988 (Rose Chicon)	Philadelphia	Retail theft	Disposition unknown
17 September, 1989 (Beatriz Arquez de Caballero)	Miami	Illegal entry Attempted Entry by Fraud Immigration without a visa	Arrested but disposition unknown
1 October, 1993 (Raquel Rivera)	New York	Jostling Hand Near Pocket	Bench Warrant issued Resentence hearing pending
7 December, 1993 (Raquel Rivera)	New York Midtown	Attempted Petit Larceny	Arraigned
5 January, 1994 (Raquel Rivera)	New York	Abortion Criminal Possession Stolen Property	Initial Report Bench Warrant issued
4 February, 1994 (Raquel Rivera)	New York Midtown	Grand Larceny Criminal Possession Stolen Property	Not arraigned
17 July, 1998 (Carmen Torres)	New Jersey	Larceny Conspiracy to Commit Larceny	Dismissed

Mrs Ruano does not admit that she has committed these offences and only admits that she has committed offences of dishonesty.

Criminal convictions in Australia

Mrs Ruano has been convicted of the following offences in Australia:

Date of offence And Date of conviction(s)	Court	Conviction	Sentence
25 January, 1999	Downing Centre NSW	Larceny	Fined $400
27 May, 1999 to 15 January, 2000 15 May, 2001	Preston Magistrates’ Court	Theft – 34 counts	Six months’ imprisonment to be served concurrently by way of an Intensive Correction Order
3 August, 2001 15 May, 2002	Broadmeadows Magistrates’ Court	Theft – 2 counts Loiter Possess Proceeds of Crime	Nine months’ imprisonment to be served concurrently by way of an Intensive Correction Order
6 November, 2001 15 May, 2002	Broadmeadows Magistrates’ Court	Attempted Theft	Sentence not apparent in G documents

The children in Colombia – Jasmin and Marcela

On the basis of Mrs Ruano’s evidence, I find that Jasmin and Marcela live in Bogota in Colombia. Jasmin is engaged and expecting her first baby while Marcela lives with Jasmin and her partner. Both are independent of Mrs Ruano.

The children in Australia – Angelo and Jenifer

On the basis of the written evidence and that of Mrs Ruano and Mr Leon, I find that both Angelo and Jenifer attend primary school in Melbourne and that Angelo has been accepted for secondary school next year. Angelo is very interested in all forms of sport including cricket and soccer. He plays both competitively according to the season and follows the Australian team in cricket as well as the Australian Football League competition. Jenifer is very interested in drawing and painting. Both have been regular attendees at school, have achieved satisfactory academic standards and have made a valuable contribution to school life. The principal of the school, Mr John Williams, has found Mrs Ruano to be very cooperative and accommodating in the small school that they attend and which asks a lot of parents. Both Mrs Ruano and Mr Leon have participated in school activities such as excursions, concerts and activity days.

THE EVIDENCE

Coming to Australia

Mrs Ruano said that she made her second application for a visa in Bogota and included her children in it. She could not recall whether there were questions regarding her previous convictions or deportation and said that she remembered the travel agent filling in the forms. The travel agent sent the forms in.

When asked what her plans had been after she had her second holiday in Australia, Mrs Ruano said that she could not go back to the small business she conducted in Melgar with Louis.. It had ended with their marriage and she thought that she and the children would need to go elsewhere to live. She was not thinking about what she would do at the end of the trip. All that she wanted to do was to have the trip and to put her mind in order and to rest.

The USA offences

Mrs Ruano denies committing all of the offences for which the records in the G documents state she has been convicted. In cross-examination, Mrs Ruano said that she admitted committing at least some of the offences listed above. She also said that she had probably been arrested in Philadelphia and Chicago but did not remember the detail. She thought that she had travelled to those cities. Mrs Ruano also agreed that she had been convicted of some of the offences.. The offences of which she had been convicted had always been stealing offences. In the main, she stole from the person rather than from places such as shops but was never violent to people. She stole from people at clubs and pubs. Mrs Ruano could recall being detained when there had been violence and assaults but she was never involved in that violence or in those assaults. She was arrested because she was present, she said. She had no drug convictions because she only used in the privacy of her own rooms.

Mrs Ruano said that she felt completely isolated in the USA by her lack of English and by the fact that all of the people with whom she had links were illegal immigrants as she had been. She never found out what services the community could offer her.

Mrs Ruano’s marriage to Louis

Mrs Ruano said that she married Louis in 1995. They did not have children and during the period of their marriage, her youngest children lived with her mother in Bogota. She said that she lived apart from her children in order to protect them from her husband as he was not fond of children. Bogota is two hours from the place where she and Louis operated a small restaurant and rooming house. That place is Melgar. Mrs Ruano said that she was always with her children as her husband did not treat them well. She saw them every day. As she had her own money, she was able to give her mother money to maintain her children. She would travel each day to another house that Louis, her husband, owned in Bogota so that she could see her youngest children. Mrs Ruano said that she owned the land at Melgar on which the restaurant is located.

Originally, Mrs Ruano said, she and her husband were planning to visit Australia together. Each had been given a visa but, when it came time to travel, they experienced difficulties and the relationship broke down. Consequently, she came to Australia on her own.

Relationship with Mr Leon

Mrs Ruano said that she met Mr Leon at a party when she arrived in Australia on the first occasion. In cross-examination, she said that he was the reason that she came back the second time. Later, she said that she met her husband the first time and they decided to marry the second time. The first time they met was at a party in Sydney but then went on to Melbourne where he lived. Mr Leon also visited her in Sydney during her first three month visit. She agreed with Mr Wee that she had applied for a visitor’s visa for her second trip and not a spouse visa as they had a relationship only and had not spoken of marriage before the second trip. She thinks that they spoke about marriage after she had returned on the second occasion.

Mr Leon said that he met Mrs Ruano at a party in Sydney. They spoke the same language and became friends. They exchanged telephone numbers and he liked her so much that he told her that she could visit him in Melbourne. She did that and then went back to her friends in Sydney. He liked her so much that he told her that she could return later as she had a twelve month visa. When asked in cross-examination whether he knew that she was married when he met her, Mr Leon replied that she said that she had plans with a partner.

Mr Leon said that Mrs Ruano came again to Sydney in October, 1998 and immediately travelled by train to Melbourne. He had given her $1,500 towards the cost of the trip. At the time, he was renting a large house and he sub-let rooms in it to others. She came with her son and one of her daughters and they stayed in his rooms. In January, 1999, she went back to Sydney and Mr Leon said that she did that because he was pushing her to much to be with him. At the time, they were “like lovers” but he was pushing her to live with him. Marcela and Angelo stayed with him for the three or four weeks that Mrs Ruano went to Sydney and he had daily contact with her. On her return, he rented another house where she would not be surrounded by all the people in the rooming house.

Mrs Ruano said that she came to Australia on the second occasion, she said, partly to see Mr Leon again but partly for herself as she wanted some peace. She had been to Australia and liked it; she wanted her children to see it as it is so peaceful. She did not come to Australia in order to develop a relationship with Mr Leon. He provided some money towards the trip but they were not living together. She moved to his house in Melbourne only for economic reasons, she said. In the beginning, she paid rent for the rooms she and the children occupied, she said in cross-examination.

In cross-examination, Mrs Ruano said that her husband found out about her convictions in the USA after she had lodged her application for a spouse visa. He found out when the Australian police found out and became aware of the Sydney offence at the same time. He has not been able to concentrate for the past eighteen months or so and he has given up his employment as a result, he said.

In cross-examination, Mr Leon said that he found out about his wife’s offences after her arrest in relation to the Preston Market offences. They were already married by that time.

Mr Leon said that the police telephoned him on Melbourne Cup Day in 2001 and told him that his wife had been drinking heavily and had been charged with trying to steal a handbag. She would be taken to the Collingwood Police Station but he could telephone the officer who called him, Mr Pontonio, if he wanted to. The officer, Mr Leon said, told him that he would take care of his wife as she had drunk too much. The officer took his wife home and said that she had been very cooperative and hoped that things went right for her. Another police officer by the name of Le Busque came to his door regarding his wife’s offences at the International Airport. Mr Leon said that the officer told him that his wife and a male companion were very drunk and possibly having an affair. There were two bottles of scotch in the car. Mr Leon said that the officer and his companion were trying to make him angry and to speak against his wife but said that he knew nothing. No further reference was made to his wife’s drinking.

The Australian offences

In giving evidence, Mrs Ruano said that she started to develop a gambling habit about a year after she arrived in Australia and in cross-examination said that it developed in about August or September, 1999. She began to use poker machines when she was left at home alone while her husband went to work. In the beginning, she said, she would go for a drink to pass the time and would go every day. She had already developed the habit of drinking before she came to Australia and described herself as drinking heavily in this period. Mrs Ruano described herself as having more than three beers and being “a bit drunk”. When it was pointed out to her that the police reports did not describe her as being intoxicated, Mrs Ruano said that she was the only one who knows that she had been drinking.

In giving evidence, Mrs Ruano said that she committed the offences at the Preston Market because she needed the money because of her losses at the poker machines. She wanted to take the money back to the machines to recoup her losses. When asked if she worked alone at the Preston Markets, Mrs Ruano replied “almost always”. She thought that there were others but she was the only one who was caught. She was always acting under the influence of alcohol. Not until she was ordered to do so, did she seek treatment for her alcohol abuse or her gambling.

In cross-examination, Mrs Ruano said that she had not committed 34 offences at the Preston Markets and had only committed three or four. She committed the offences in relation to which she was found to have handbags in her car. Mrs Ruano then said that she did commit some offences when she went to do the shopping but she could not say which ones she did commit because she had been given such a long list. In addition, she was not the only person committing offences at the Preston Markets. She did not think that she had committed all of them. As she did not have money to pay a barrister or solicitor, she pleaded guilty so that the matter was not always being postponed. Mrs Ruano then said that she had a barrister who complained about the time being wasted by the matter’s being continuously postponed. She said that she was not sure how they did so but the barrister and the police agreed to her pleading guilty to 30 something charges. There would be no gaol and no impact upon her immigration status.

When it was pointed out to her in cross-examination that she had said that she had not started gambling until August or September, 1999 but the Preston Market offences had commenced in May, 1999, Mrs Ruano said that she had always had her vices; drinking and gambling.

Mrs Ruano said that she could recall going to the International Airport in August, 2001 where she was involved in the theft of a man’s brief case. A friend took part in the offence and he and she had been at a discotheque earlier in the day. He had suggested, she said, that they go to the airport where he would meet his fianceé. When they arrived, he did not know where his fianceé was or the flight on which she was arriving and they spent a long time looking for her. When asked how she moved from meeting her friend’s fianceé to attempting theft, she replied that she was not sure, she thought that she was drunk and that circumstances appeared to take her there. She had drunk a lot as she and her friend had been drinking whisky with two other friends and they had then continued to drink in the car on the way to the International Airport.

In cross-examination, Mrs Ruano said that her friend had been as drunk as she was or even more so. He had driven to the International Airport. The police would have been aware of how drunk they were as they had found two bottles of whisky in the car.

Mrs Ruano said that she recalled Melbourne Cup Day in November, 2001. She said that she could not recall the offence and could not remember the incident as she was very drunk. As she could not remember it, she could not deny the offence. She was extremely drunk and the police had to carry her.

Mrs Ruano recalled her conviction at the Downing Centre and said that it related to the theft at a shoe shop. She had tried to take a pair of shoes without paying. She admitted that she had committed the offence. She had committed the offence as she had felt “under temptation” but had not been drinking and she had yet to develop a gambling habit. Mrs Ruano could not say why she committed that offence apart from being “so foolish”.

Mrs Ruano said that she felt very ashamed of her offences in Australia and very ashamed of the life that she has lived. She is very sorry that she has committed offences in Australia when she has actually received so much support as a person here and also support for her children. Since the last of the offences for which she has been convicted, she has not committed further offences. She wants to continue as she has since she began rehabilitation.

Activities in Australia since offences committed

As a result of her attending the Carlton Neighbourhood Learning Centre, to which she had been referred by the Carlton Community Correctional Services, Mrs Ruano said that she felt that she had learned a lot besides English. She had been able to communicate and to know people whom she had not known before. Through the rehabilitation programme, she had learned things about herself, learned that she could study and become a member of the community.

For a little over a year, Mrs Ruano said that she has been involved with the Spanish Latin American Welfare Centre (“CELAS”). She had wanted some help for her problem and had heard about the Centre from a South American friend. Mrs Ruano and her husband both approached the Centre where she met Mr Oscar Lopez, a psychologist. He was the first person to whom she felt able to tell all her problems. She talked about what had happened to her and what she had done. Mr Lopez, she said, motivated her to talk about herself and she could do so without feeling embarrassed. Mrs Ruano said that she was able to admit that she had a problem. In her weekly visits, she learned that she could better herself, study and keep herself busy. She stopped attending CELAS when Mr Lopez left in July, 2003 and she could not afford to consult him privately.

Mrs Ruano said that she has also had counselling from Ms Natalia Pereira at CELAS. Ms Pereira has helped her to undertake activities in the community and put her in touch with a body in Moonee Ponds to assist her overcome her gambling. Mrs Ruano said that she attended that body on three occasions to explain her gambling problem and to be given literature in Spanish. She has not attended in the last eight months as it is difficult for her to get there and she keeps reading the literature. Mrs Ruano says that she has stopped gambling and can now go past a poker machine venue without going in. The last time she gambled has not been for “a while now” and even then she gambled only $5 or $10.

Mrs Ruano said that she helps at the Peruvian Soccer Club by helping the President’s wife to maintain the uniforms, clean and prepare food. She started that work about seven months ago and continued until she went into detention. Mrs Ruano said that she might have a drink at the Club and only infrequently at a pub. She has no contact now with the friend with whom she committed the offences at the International Airport.

Mrs Ruano said that she has also been involved with the Peruvian Handicrafts. Father Immanual, a Catholic priest, has funded schools in Peru and Mrs Ruano has helped him in his fund raising activities.

Since she was last convicted, Mrs Ruano has been employed as a cleaner for about six months. That work finished in May, 2003 but, while she did it, she worked for about three or four hours each day cleaning offices.

The statements in her immigration documents

Mrs Ruano said that she omitted reference to her daughter, Marta, as she had been living with her maternal grandparents for many years since she was five years old. Marta is now 21 years old. She could not recall saying that she had omitted Marta’s name as she had thought that reference to her would diminish her chances of being given a permanent visa. It was not her reason for omitting Marta.

The children

Mrs Ruano said that Jenifer and Angelo have not seen their father for some eight years and that she last heard some three years ago that he is in prison in Mexico. The last time that there was any contact with the two youngest children’s father was some four years ago. Mrs Ruano needed to do so in order to obtain his permission for them to travel to Australia. Contact was made through one of Mrs Ruano’s eldest daughters, Jasmin or Marcela and they made that contact through his mother. Neither Mrs Ruano nor her two youngest children have had any contact with him since a time long before that date.

In giving evidence, Mrs Ruano said that, apart from Jasmin and Marcela, her mother was the only person she was in contact with in Colombia but she does not “really have a lot of contact with her”. Her mother is now 70 years of age and she is quite ill. Angelo and Jenifer do not have a lot of contact with either her or Jasmin and Marcela. Until Angelo was five years of age, he and Jenifer spent most of their time with Mrs Ruano’s mother in Colombia. They did not attend school but did spend time at a childcare centre. Although they were not living with her, Mrs Ruano said, she was always close to them and concerned. Later in the hearing, Mrs Ruano said that her mother would love to have the children live with her again but repeated that her mother is ill. She has high cholesterol and other ongoing problems that she assumes are normal with her age. Mrs Ruano imagines that her mother is not the same person she left five years ago. The loss of her son has also had an impact on her mother.

The children have adapted very quickly and have done so more quickly than she. Before they came to Australia, neither spoke English but they do now. Angelo and Jenifer both speak fluent Spanish and Mrs Ruano communicates with them in Spanish while Mr Leon does so in English.

Mrs Ruano said that she was not sure about the quality of the education available in Colombia but that, apart from that, education is very hard to get for a person who does not have much money. That was why she had not been able to attend school.

Mr Leon said in his statement that he has a very good relationship with Angelo and Jenifer and is a father to them. They have no contact with their biological father. The children consider Australia to be their home and he and they are happy with each other. While he has contact with his daughter in Peru, the relationship is very different.

Mr Leon said that Jenifer arrived in June or July, 1999 after Marcela had returned to Colombia. When Mrs Ruano came with Marcela and Angelo, she and he had not known that they would marry. In cross-examination, Mrs Ruano said that she had brought Angelo as he was older and would enjoy the trip more. The original plan had been that Jasmin and Jenifer would also come to Australia as well but finances did not permit it. Jasmin came with Jenifer but stayed only three months. Mrs Ruano had wanted Jenifer to go back but then decided that she should stay. Mr Leon said that he went to the Department and was told that it was all right for Jenifer to stay.

Mr Leon said that the children do not speak of their lives in Colombia. They speak only of “children’s things” such as of the dog and of colour. They are very active little children. They like Australia a lot, Mr Leon said. They like school and are very popular in the neighbourhood and in the community. Things such as safety and friendship with other people are not like that back home, he continued. They would miss their activities and he wants the children to have the opportunity that Australia brings them. That opportunity is not available in the old country. When he tells the children that they may have to go back and that he will not be able to give them things as he does now and they will not be able to do all of their activities, Angelo and Jenifer tell him “don’t worry; you are all we need..”

The future

The level of violence in Colombia is “terrible, terrible”, Ms Ruano said. Unfortunately, she continued, Colombia is a country of violence and she sees that even more so now that she is so far away. She does not know how people are able to live there as they are always afraid of violence. A person cannot walk down the streets in peace as there is always violence and bombings. There are rapists and terrorists everywhere. Mrs Ruano said that she was speaking of Bogota, which is a city to which people from all over the country travel.

If she were to return to Colombia, Mrs Ruano said that she did not know whether she would return to Bogota as she did not see the future for herself or her children in that city. In cross-examination, Mrs Ruano said that her children did not have any problems with terrorists where they lived in Bogota. When it was suggested to her that her elder daughters and her mother live safely in Bogota and that she has exaggerated the issues of safety, she replied “that’s your opinion but not mine”.

In cross-examination, Mrs Ruano said that she owns the land on which the restaurant and the rooming house is built in Melgar. At the moment, it is cared for by a family from town and they have lived there for two years. She said that she arranged for the family to do that but that they do not pay rent as such. When it was in operation, the business was viable. She worked there and generally slept there. Melgar is located only two hours from Bogota but the climate is quite different and people travel there for the sunshine.

If she has to live there, she will live there, she said in cross-examination. For the children, it will be difficult as their education would have to be in Bogota. Travel to Bogota would be by bus. The drivers of what are known as the “the fleet” buses are quite irresponsible. They fight for more passengers on their bus and then drive irresponsibly. The highway on which the children would have to travel is one of the most dangerous in Colombia. Along that road is a place where terrorists hide. Terrorists are a fear that has to be lived with daily.

Apart from safety issues, it is very difficult to find good schools in Colombia for the children.. There are none, she said, but then added that there would be good ones if a person were rich. Public schools demand so much to be paid for uniforms, books, colouring pencils and things that a family cannot provide. If a child attends school without the things that the school demands, he or she is pestered by the teachers. A lot of children do not attend school for that reason, she added, and it does not matter if they are bright and deserve an education. Children of nine or eleven have to go out into the streets looking for work. She has been through it and she knows children who have been through it. The children have to go to the city to look for work and there are all sorts of dangers in the city. There is no legislation requiring children to attend school until a minimum age. Her two elder daughters completed both primary and secondary education, she told Mr Wee in cross-examination.

If his wife is not successful in her application to remain in Australia, Mr Leon said that he will go with her to Colombia but he is worried that he will not be able to support the family. His love for his wife and the children is too strong for him to do otherwise. Apart from Jasmin and Marcela, Mr Leon said that he knows no one in Colombia. Mr Leon said that there used to be terrorism in Peru but not anymore. Life in that country is very poor but drugs are more prevalent in Colombia than in Peru. Mr Leon said that he does not know what work he would do if he had to live in Colombia but he does know that the minimum salary is $70 or $80. Mr Leon said that he still has members of his family who live in Lima but they are all leaving the country to live in other countries. His mother will be going to the USA.

Carlton Community Correctional Services

In a letter dated 13 November, 2002, Mr Paul Hukely, the Community Corrections Officer at the Carlton Community Correctional Services, wrote:

“In my capacity as a Community Corrections Officer supervising Ms Ruano on a twice-weekly basis I have had the opportunity to assist Ms Ruano in addressing the underlying factors in her offending behaviour. Since Mrs Ruano commenced her order on 15.05.02 she has attended and been exited from counselling for alcohol abuse with Odyssey House in Carlton. This was the most pertinent factor in Ms Ruano committing her offences.

Ms Ruano has also since August of 2002 has been attending an English reading and writing skills course with Carlton Adults Reading and Writing Program on a twice-weekly basis. Since her commencement at this program Ms Ruano’s English has improved greatly.
Ms Ruano advises me that at the beginning of November 2002 Ms Ruano gained employment at Mutual Cleaning Services on a part-time basis cleaning of an evening from Monday to Friday from 6:00pm to 8:00pm. Ms Ruano is currently on three-month probationary period for this position.
Ms Ruano whilst reporting on her Intensive Correction Order to Carlton Community Correctional Services has maintained all her obligations presented as motivated and willing to change her ways and lead an offence free lifestyle.” (G documents, page 58)

Psychologists’ report – Mr Bernard Healey and Mr Edwin Kleynhans

Mr Healey is a consultant clinical psychologist who interviewed Mrs Ruano on 30 October, 2003 for three hours. He found her English limited but was able to interview her with an interpreter. Mr Healey set out the history that Mrs Ruano gave him of her childhood, family, health, relationships, schooling and employment. She told him that she had suffered depression throughout her life and she sought detachment from it through alcohol and drugs. He set out the history of her relationships. Mr Healey concluded:

“It was evident from the history she gave that she was an extremely disadvantaged person, reared in deplorable circumstances, and embarking upon independent living for which she was ill-prepared as a naïve adolescent. She gave birth to two children in rapid succession; they were reared by her mother and she accompanied a man 10 years her senior to the United States as an illegal immigrant; they lived at Queens and she coped by smoking cocaine and consuming alcohol to excess. She had a daughter (who was cared for by paternal relatives) and when her partner went to gaol she developed a liaison with another drug addict to whom she had two children; there was a brief, unsatisfactory relationship before she came to Australia in 1998. She failed to declare the full facts of her background (such as prior offending) as she was uncertain about staying in this country. It was then that she met her husband and for the first time experienced a caring relationship; however she tended to drink alcohol to excess in order to detach herself from memories of her past, and became involved in gambling on electronic machines for the same reason. In that context she engaged in offending to bolster her finances to support her addictions. Only the persistence of authorities, implementation of therapeutic assistance and Martha’s co-operation which such input brought about changes in her functioning; however, she has developed insight about her continuing vulnerability and the need to remain watchful in the future.
In view of all her circumstances, it would be most inhumane to deport this lady, at the same time obliging two young children who have made their home in Australia to resume a lifestyle far different to that to which they have become accustomed – an impoverished setting in which they would lack support, the opportunity for schooling, a similar setting to that which Martha tried for so many years to escape – with quite demoralising consequences until she came to Australia. She recognises the wrongness of her failure to reveal the true nature of her background when she arrived in Australia, although it was clear to the writer that all her offending has been directed at maintaining addictions, and in which no person sustained physical injury. Through therapeutic intervention, significant changes have been wrought in her life, so that it could be reasonably predicted that she would not become a recidivist and would not be a burden to the community. On the positive side, through ongoing rehabilitation and education she would be able to help others in need and to be a caring mother to her two children, who could well become committed citizens of this country. She and her husband are under no illusions about the difficulties that lie ahead, and would be grateful if she were permitted to remain in Australia.
Specific testing revealed average intellectual capacity with no test signs of cerebral impairment, and powers of delayed recall were sound. Personality testing was indicative of longstanding depression and chronic anxiety linked to her appalling life experience. With her response to ongoing therapy, it could be reasonably predicted that marked improvement would occur in her functioning, in her health (emotionally and physically), enabling her to care more adequately for her children.” (Exhibit F)

Some time earlier on 23 October, 2002, Mr Edwin Kleynhans, who is also a psychologist, had written a report. He made no reference to Mrs Ruano’s offences but concentrated on the difficulties that would face the family and its members if they were to be separated and if Mrs Ruano were required to leave Australia. Referring to long term psychological consequences, he said:

“Given their personality profiles (ie that they are vulnerable to stress), Jeneffer and Miguel Ruano would suffer considerably, ie mentally and developmentally, if they are unsuccessful in their submission to the Australian Authorities. Their stepfather, John, and mother, Martha, would suffer long term as well. I believe that their children would develop long-term psychological problems if they were separated from their secure environment in Melbourne and from their stepfather, John.” (G documents, page 65)

Mr Kleyhans concluded:

“It is my opinion as a Psychologist, having examined this family, that they are faced with compelling circumstances, which warrant a compassionate intervention by the Minister for DIMIA.
A separation and departure from Australia could have an adverse effect on the identity and educational development of Jeneffer and Miguel Ruano. They are vulnerable at this stage of their development.
They would like to live as a family and have plans for the future.
John has problems in living on his own for long periods and will be very stressed if he is separated from Martha and her children. Similarly, Martha would suffer psychologically as well for she had found at last a safe environment and fatherly support for her children. She and John would like to have children of their own as well and are in the process of looking at medical avenues to make this possible.” (G documents, page 66)

Mrs Ruano’s referees – Ms Alison Whitehead

On 15 October, 2003, Ms Whitehead, who is the Food Co-operative Manager for Friends of the Earth in Melbourne (“FEM”) wrote a letter:

“… to plead for Martha Ruano to be allowed to stay in Australia. I am aware that her application for residency was revoked on the 17^thdecember 2002, and that she now faces deportation and therefore seperation (sic) from her family and friends. I have worked with Martha over a year while she was paying for her debt to society due to a problem with Australian law and I feel that she has more than honoured her obligations. Martha always worked hard and showed initiative, competancy (sic), also a happy teamworker, I would not hesitate to recommend her for any employment or study oppurtunities (sic) as I am confident she will be a valued contributor to the workforce and the community at large.” (Exhibit C)

Ms Whitehead said that she has known Mrs Ruano for over eighteen months. Her duties with the FEM required her to cook, clean, dust, wash dishes and undertake general duties at FEM’s café. She worked with FEM for one period of six months and then a further period of three months. Ms Whitehead was most happy to have Mrs Ruano back to work. She found Mrs Ruano to be exuberant, very happy and a good team worker as well as a person who showed initiative, was quick witted and undertook tasks that she was not asked to do. Ms Whitehead found Mrs Ruano to have a social conscience, to be very friendly and to be flexible and enthusiastic. People were glad when Mrs Ruano was on their shift. Mrs Ruano also visited the FEM café quite often. At times, Ms Whitehead would catch up with Mrs Ruano outside the café and they would talk about family. Ms Whitehead said that Mrs Ruano’s background was not her concern. Their community workers are screened before they are sent to FEM and so they are never really violent.

Mrs Ruano’s referees – Ms Lynne Matheson

Ms Matheson is the Co-ordinator of the Carlton Neighbourhood Learning Centre (“CNLC”) and, during 2003, has also taught a class attended by Mrs Ruano. She is aware of Mrs Ruano both in her role as teacher and as the Co‑ordinator responsible for organising volunteer tutors. Since August, 2002, Ms Matheson wrote, Mrs Ruano:

“… has attended classes regularly and has been most conscientious in her approach to learning English. She has related well to other students and participated in all activities including our excursions and multi-cultural lunches. Her strength of character and gentle nature has endeared her to both teachers and students.
On behalf of the CNLC community, I wish to convey our support for her case to remain in Australia with her family and friends. …” (Exhibit A)

In her oral evidence, Ms Matheson said that initially Mrs Ruano attended two English classes totalling four hours per week as part of the community order she was under. After the completion of her nine month community order, Mrs Ruano continued the programme into 2003 for seven hours each week until she was detained. During the course of her attendance, Ms Matheson felt that Mrs Ruano’s confidence improved and she became much happier in herself. Her general demeanour became more open. She became very fond of her teacher and her fondness was returned. She developed friendships with the Spanish speaking students and she felt a connection in the community.

In cross-examination, Ms Matheson said that she was aware of the nature of Mrs Ruano’s previous convictions and the CNLC accepts people who have committed minor crimes. They have a mixture of people and cannot accept people who have committed serious crimes. Language and literacy skills are very important to enable people to rebuild their lives. Mrs Ruano’s written English is quite good but she still needs a dictionary. Her oral skills enable her to communicate really well but she has some difficulties. She would be able to communicate with a child on an every day matter but not on more complex issues.

Ms Matheson said that Mrs Ruano had told her about her convictions when she visited her at the detention centre. She had, however, only told her about the convictions relating to the International Airport but not about any others.

Mrs Ruano’s referees – Father Emanuel Adami

Father Adami of the Missionary Society of St. Paul wrote on 4 November, 2003:

“I am writing to you in reference to the Martha Aruano case. I came to know her through the Spanish Speaking Chaplaincy. I even went to see her a couple of times at the Detention Centre in Maribyrnong. It seems to me that the errors she committed in her past life were the result of her lamentable upbringing and the pressures she had to undergo in the cruel conditions she was living. Still, for all this she is seriously sorry and promised me not to repeat such things anymore. She has matured very much and want to settle in Australia peacefully with her husband and her two children.
I turn now to your clemency, aking (sic) you to give another chance for an extensive visa if possible of a permanent stay in Australia.
There are grounds of great hope for this poor woman. I beleive (sic), too, that she and her family will contribute in their own way for the advance of our great country of Australia.” (Exhibit F)

Mrs Ruano’s referees – CELAS - Ms Natalia Pereira and Mr Oscar Lopez

Ms Pereira is a Community Development worker at CELAS, which has provided information, advice and support to Mrs Ruano. At the time that she had contact with Mrs Ruano, Ms Pereira was a Family Support worker and provided her with counselling as well as guidance in relation to her immigration matters. She found Mrs Ruano to be responsible, devoted and dedicated and was constantly interested in knowing how she could improve her situation. If Mrs Ruano’s application were granted, Ms Pereira wrote in her letter of 24 October, 2003, it would prove to be a positive contribution to Mrs Ruano’s physical, mental and emotional well-being.

Mr Lopez, who was a Community Development Worker as well as a Counsellor (Probationary Psychologist) at CELAS wrote a report received by the Department on 7 November, 2002 in which he said, in part:

“During the time that I saw Ms Ruano she has behaved in a responsible manner and appeared very committed to work towards overcoming her gambling issues. Ms Ruano is a person who admits that she has done wrong in the past and is prepared to obtain help in order to facilitate her recovery. She has gambling problems, which have lead her to make a few mistakes in order to maintain her addiction to gambling.
She has been very cooperative during the time she has come to CELAS for assistance and voluntary accepted counseling (sic) for her gambling addiction. Thus Ms Ruano is determined to get the assistance that she now accepts. Through this process, we have been able to explore her feelings of remorse about the offences that she has committed. This has affected her emotionally; as she feels guilty and has expressed difficulty falling asleep and suffers from interrupted sleep.
In my professional opinion I believe that Ms Ruano is very determined to better her life and current situation. Through our counselling sessions she indicated that when she came to Australia it was like a new start and that her past would not intervene with her life, however, she did not receive nor looked for professional help to assist in her recovery, thus making the same mistake as in the past. Due to the present situation Ms Ruano understands that she requires professional assistance if she is not to re-offend, this in turn, I believe, has given her the determination to better her life and begin a new life in Australia.
As a Community Development worker as well as a Counsellor (Probationary Psychologist), I support and recommend Ms Ruano’s application to stay in Australia and not have her visa cancelled.” (G documents, pages 55-56)

Mrs Ruano’s referees – Ms Dario Mejia

Ms Mejia is the owner of Peruvian Handicrafts in Melbourne and wrote that she has known Mrs Ruano for five years. She has always found her to be a responsible, reliable, caring and honest person. Mrs Ruano’s marriage could be affected enormously if she were not permitted to remain in Australia. Her children will also be affected. They would suffer physically if they had to eat the less nutritious food available in Colombia and would suffer mentally and psychologically if they had to leave all their studies in Australia. The children love Australia and its safe, healthy and friendly environment.

Mrs Ruano’s referees – Mr Roque Joaquin Leon

Mr Roque Leon is Mr Leon’s father and he wrote on 21 October, 2003 of the incredible change that has been brought about in his son’s life since he began family life with Mrs Ruano. His son has become a father figure to her two children and together they have formed a family unit. Mr Roque Leon is very upset to think that his son may go to Colombia if Mrs Ruano’s visa is refused. He knows how hard it is in Colombia and he knows that his son’s life could be in danger in a country where the future is grim and there is no opportunity. He believes that Mrs Ruano and her children are victims of circumstances in that they come from a struggling country and believes that Australia can provide help to people who come from a less fortunate situation.

Mrs Ruano’s referees –general

Written references were also received from Mr Roberto Donato Casas, who has known Mrs Ruano for four years, Mr Cesar Agusto Cuzcan, who has known Mr Leon for 11 years, Father José Hernandez, who is the Chaplain for the Spanish and Portuguese Speaking Communities in Victoria and has known Mrs Ruano for sixteen months, Mr Jamie Barra, who has known Mrs Ruano for five years, Ms Clara Barbaran, who has known Mrs Ruano and her family, Mr George Hddad, who is the proprietor of the Bullring Bar and Restaurant and who has known Mr Leon and Mrs Ruano for several years, Mr Luis Velasquez, who has known Mr Leon for over ten years, Mr Marco Navarro, who has known them since 1998, Ms Lidia Plasencia, who has known Mr Leon since he arrived in Australia and Mr Alfonso Sergio Grados, who has known Mr Leon for 12 years. Each speaks warmly of Mrs Ruano and her family and of the hope that the past can be put behind her. Some refer to transgressions of the law in the past but none makes reference to offences in Australia.

CONSIDERATION

Framework of Act

Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“the Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for either of the visas under consideration in this case is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.

At the time that the delegate’s decision was made and of this review, criterion 4001 provided that:

“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass 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.”

Section 501(1) of the Act provides that:

“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, in so far as it is relevant, provides that:

“For the purposes of this section, a person does not pass the character test if:
(a)…
(b)…
(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
(d)…

Otherwise, the person passes the character test.”

The Direction

Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No.21 (“the Direction”).

In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”

The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”

The Direction - application of the character test

The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Only those in s. 501(6)(c) are relevant. Of them, the Minister stated in the Direction:

“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”

In considering whether a person is not of good character when measured against s. 501(6)(c)(i), the Minister directs decision-makers to take the following into consideration:

“(a) the nature, severity and frequency of the offence/s;
(b)how long ago the offence/s were committed;
(c)the non-citizen’s record since the offence/s were committed, including:
any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of continued or blatant disregard/contempt for the law; and

(d)any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.” (paragraph 1.8)

With regard to s. 501(6)(c)(ii), the Minister directed, in so far as it is relevant to the circumstances of Mrs Ruano’s case:

“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, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;

involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.

(b)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;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence which the applicant has been charged; or

(b)resulted in non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

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. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”

The authorities regarding “good character”

In this case, the focus is upon any criminal conduct in which Ms Ruano may have engaged as set out in s. 501(6)(c)(i) and upon her past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:

“`Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)

After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:

“These are overall requirements important in the administration of immigration procedures. 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. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.” (pages 155-156)

A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137. In Prasad, Deputy President McDonald added:

“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)

What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:

“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ 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 a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)

Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:

“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. 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. 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the Tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)

Does Mrs Ruano pass the character test?

On the basis of the evidence of all of those who spoke warmly and highly of Mrs Ruano, I find that she is a person who is well regarded by those who know her socially as a good mother and a loving wife. Together with Mr Leon and her two youngest children, they form a solid family unit. Mrs Ruano participates in activities arranged by the school her children attend and has become involved in the Peruvian Soccer Club where she donates her time towards the good of the club.

While some of those who have written on her behalf have spoken of her past difficulties and the pressures she underwent, none has revealed any detailed knowledge of those difficulties or pressures.. At one extreme, Mr Barra makes no mention at all of Mrs Ruano’s previous difficulties. At the other, Father Adami, for example, does make reference but does not indicate whether they occurred before or after her arrival in Australia. Mr Grados understands that Mrs Ruano’s current difficulties arise “because of her past and because she gave false information to Immigration” (Exhibit F, page 53). Ms Barbaran wrote that “John has informed me that on 17/09/03 Martha’s Visa was refused on the basis of her past not been entirely free of encounters with the law” (Exhibit F, page 46). Mr Velasquez wrote that “John explained that this refusal is mainly related to the non disclosure of in Marta’s application of charges for offences allegedly committed prior to her entry to Australia (In November 1998)” (Exhibit F, page 50). Ms Plasencia stated that “Martha told me how hard it was for her, with her past life and the mistakes she did” (Exhibit F, page 52). Ms Matheson knew about the offences at the International Airport because Mrs Ruano had told her about them but she had not known about any others. Ms Whitehead did not know the details of any offences although she understood that she must have offended in the past in the context in which Mrs Ruano was referred to her. I refer to these referees as examples only of what is reflected in a reading of all of the referees’ letters and evidence. It may be that Mr Lopez knew the extent of her offences but it would seem from Mr Healey’s report that he seems to have been aware only of the offences at the Preston Markets and of Mrs Ruano’s having re-offended about a year later. None of the documents to which he referred set out Mrs Ruano’s offences. That would suggest that he was not aware of the offence in Sydney prior to the Preston Markets.

Although many of the referees have not shown a broad knowledge of the types of offences of which Mrs Ruano has been convicted in the past, I am unable to ignore them. In relation to them, she has expressed uncertainty as to whether she has committed all of the offences of which she has been convicted. In relation to the Australian offences she states that she did not commit all 34 of the offences at the Preston Market of which she has been convicted and limits her guilt to three or four. The effect of her evidence is that she does not recall what happened on Melbourne Cup Day or at the International Airport as she had drunk too much alcohol. Her uncertainty extends to those offences of which she has been convicted in the USA as well as in Australia. In so far as those in the USA are concerned, she does not dispute that the records have been obtained by matching her fingerprints but admits only those relating to theft.

I cannot make a finding contrary to a court’s conviction. This follows from the views of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ) where it said (pages 244-245):

“40    The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
41     There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
42     Counsel for the respondent submitted that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence. We reject the submission and, as explained later, we do not understand Davies J to have gone so far in Beckner [v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49].
43     Wood J found that it was the respondent who inflicted a stab wound to the heart that was a direct cause of the death of the Deceased. His Honour considered that the jury, having rejected the respondent's statement from the dock must, by their verdict, be taken to have accepted the evidence of two police officers. His Honour considered that the jury verdict in that regard was entirely understandable. He went on to say:
‘To kill a man in his own flat, in the brutal and cowardly way which occurred in this case, is a matter which can only attract the abhorrence of the community. It is the kind of offence for which there must be not only personal punishment and retribution, but also a substantial element of general deterrence.’

44 It was on the basis of these findings made by his Honour that the sentence was imposed. It is a matter of speculation as to what sentence Wood J would have imposed had he found different facts. It may be that his Honour would still have sentenced the respondent to imprisonment for a period of not less than one year. Be that as it may, the basis upon which he imposed the sentence that satisfied the requirements of s 201(c) of the Act is impugned by the reasoning of the Tribunal.
45 To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

46     While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above, at 445-446 per Fox J.
47     We do not accept the submission of counsel for the respondent that Beckner stands as authority to the contrary of the foregoing. In Beckner, Davies J was simply recognising that some matters, such as the risk of recidivism, which might be considered in passing by a sentencing Judge will assume greater importance before the Tribunal, and that the Tribunal should allow further evidence to be given in relation to those matters to allow them to be considered more fully. His Honour did not say, nor do we take him to have meant, that the Tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.
48     In so far as the Tribunal adopted the approach that it need not accept the essential factual findings made by the sentencing judge in imposing the sentence that was a precondition to the making of an order under section 200, the Tribunal erred in law.”

Applying these principles to Mrs Ruano’s case means that I cannot make a finding contrary to the essential facts upon which those convictions are based. In the case of the 34 convictions in relation to the events at the Preston Market, for example, this means that I cannot find that Mrs Ruano committed only three or four of those offences for to do so would be contrary to the court convictions. I cannot find that she did not know what she was doing at the Flemington Racecourse on Melbourne Cup Day for to do so would be to deny the mental element that is inherent in her conviction by the Broadmeadows Magistrates Court for Attempted Theft. Section 72(1) of the Crimes Act 1958 (Vic) provides that:

“A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the owner of it.”

What amounts to “dishonestly” is one of the subjects effectively dealt with in s. 73. What is important in this case is that the effect of s. 72(1) is that Mrs Ruano’s conviction for Attempted Theft must carry with it a finding that she intended permanently to deprive the owner of the contents of the handbag had she succeeded in taking them at the Flemington Racecourse. Similarly, I cannot find that she did not know what she was doing when she was convicted of theft on the other occasions in Victoria or of its equivalent, larceny, in New South Wales.

I may have regard to Mrs Ruano’s reasons for committing the offences and that is that she was drinking and gambling. Although I have not reproduced them above, I have read the statement of Senior Constable Pontonio in relation to the Melbourne Cup Day offence and the summary of charges and statement by Detective Senior Constable Le Busque in relation to the International Airport offences and the summary of charges by Detective Senior Constable Aitken in relation to the Preston Market offences as well as the associated documents in the G documents. None made any reference to Mrs Ruano’s being intoxicated and that is despite the summary of charges sheet specifically drawing their attention to the state of the defendant including intoxication. Mrs Ruano was marked as “co-operative” but not marked as “intoxicated”. Although Mrs Ruano and Mr Leon both say that she was intoxicated, I do not accept that her judgement was at all diminished by alcohol at the time the offences were committed. In making this finding, I prefer the evidence of the police officers who made no indication of it in their reports and who had no apparent reason for not mentioning it.

This is not to say that Mrs Ruano may not have had some difficulties with alcohol or that it was not a factor in her committing the crimes. I accept that she has had counselling for alcohol abuse at Odyssey House in Carlton. I also accept that Mrs Ruano has had a gambling addiction for which she has also attended three counselling sessions.

Having regard to both her evidence and to Mr Healey’s report, I find that Mrs Ruano attributes her offences in the USA to her need to finance her drug habit. That is a habit that Mrs Ruano says that she no longer has and I have no reason not to accept her evidence on this aspect. What is of concern to me is that she replaced one habit with another as a reason for her offending behaviour i.e. she replaced drug addiction with gambling addiction. Alcohol abuse remained a constant. Her convictions in the two countries show a similar pattern of offending. She has committed offences of dishonesty over an extended period of time although the convictions have only come intermittently between 1980 and 1994. When regard is had to those matters in relation to which she has been arrested and charged but in relation to which their disposition is unknown, the picture in the USA becomes a little different. As she has said, she may have been charged with the offences of violence simply because of the place in which she was found and I accept that in relation to the offences of violence.. In relation to the offences of dishonesty with which she was charged but where the outcome is unknown, they do show that she through her behaviour has drawn herself to the attention of the law enforcement authorities in the USA over an extended period of time but, once again, there are gaps in the times at which she drew that attention.

The pattern has been similar in Australia with the four groups of offences committed between 1999 and 2002. Unlike the pattern in the USA, there are no outstanding charges or charges that have not been prosecuted. Despite that, there have been four sets of offences over an approximately three year period with one of those sets itself extending over a six month period and comprising 34 offences. Two years have passed since the last offence on Melbourne Cup Day.

As to the nature of the offences that Mrs Ruano has committed, I have no sentencing remarks. For all that, the offences of which she has been convicted themselves show that she has stolen from the unsuspecting whether they be shoppers at the Preston Market, travellers at the International Airport or a woman after the Melbourne Cup race day at the Flemington Racecourse. There very number and the fact that they have been taken from the unsuspecting going about their everyday lives means that they cannot be treated as insignificant.

Mr Healey’s evidence is to the effect that Mrs Ruano is unlikely to re‑offend now that she has resolved her gambling and alcohol addictions. As I have found, though, Mr Healey referred only to two of Mrs Ruano’s sets of convictions and did not refer to any others of which he might have been aware from the documents he was given. He has not analysed Mrs Ruano’s history of offending or considered why she would acquire a new habit when she had a new opportunity to start again in a new country. Certainly, she has completed her sentences and earned good reports from Mr Hukely at the Carlton Community Corrections Centre as well as from Ms Humphreys and Ms Whitehead. I accept their evidence but, having reviewed Mrs Ruano’s offences, I do not consider that sufficient time has passed to be satisfied that she is unlikely to repeat her offending behaviour. The longest period during which she escaped notice in the USA was between 1981 and 1984. That is a three year period and it occurred in the middle of the period of her offending from 1980 to 1994. Only two years have passed since she last offended in Australia and, although she has had assistance to address her behaviour that she has not previously received in the USA, I am not satisfied that it can yet be said that her risk of recidivism is low.

I also find that Mrs Ruano did not disclose her convictions in the USA or her deportation at any time when she has applied for a visa to come to or remain in Australia. This is a breach of s. 234 of the Act but also meant that the Department’s officers were not placed in a position where they could make a balanced initial decision as to whether or not she should be permitted to come to Australia as a visitor in the first place. I accept her explanation that she wanted to put the past behind her but, in failing to answer the questions in the applications as she should have, she has revealed a disposition to place her personal interests and those of her family ahead of her duty to the wider Australian community. As I said in Goonewaradana and Minister for Immigration and Multicultural Affairs [2001] AATA 762:

“… In the context of the Act, this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia’s migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met.” (paragraph 97)

When I view Mrs Ruano’s convictions and behaviour in making misrepresentations when applying for her visas, I am satisfied that she is not of good character and so does not pass the character test. Her good reputation as a mother and as a wife does not persuade me otherwise. When viewed overall, she has shown great regard for her family and friends but she has shown no regard for the wider Australian community. It is in the context of the safety and welfare of that wider Australian community that I must consider Mrs Ruano’s character and not in the context of the much narrower context of her family and friends or even in the context of the Latin American community in Australia.

The Direction – exercise of the discretion

Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed that they:

“… 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.” (Direction, paragraph 2.2)

The three primary considerations are:

“(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 relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)

The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mrs Ruano’s conduct; the likelihood that she will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

Of particular significance in relation to the seriousness and nature of Mrs Ruano’s conduct, I must have regard to the Direction that:

“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using a possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

…” (Direction, paragraph 2.6)

In assessing such matters, regard must also be had to any relevant factors put forward by Mrs Ruano as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that her conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mrs Ruano’s case, it is relevant to have regard to:

“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, paragraph 2.10(c))

General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).

Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:

“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, paragraph 2.12)

The third primary consideration relates to the best interests of a child. The matters to which the Minister has directed a decision-maker’s attention in considering the best interests of the child are:

“(a) the nature of the relationship between the child and the non-citizen;
(b)the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)the age of the child;
(d)whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen’s prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.” (Direction, paragraph 2.16)

The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:

“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (ie also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)

In looking at the best interests of the child, regard must also be had to the High Court’s judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 (Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child (“the Convention”) in making administrative decisions under the Act. Articles of that Convention with particular relevance in this case state:

“Article 3
1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. …
Article 9
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2.In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.…
4.…
Article 18
1.States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2.For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities …
3.…”

The majority in Teoh accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority continued:

“No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as ‘a primary consideration’.. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.” (page 365)

Before returning to that, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:

“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

(b) …
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)family composition of the non-citizen’s family, both in Australia and overseas;
(e)…
(f)…
(g)…
(h)any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)…” (Direction, paragraph, 2.17)

Should Mrs Ruano not be refused a visa on the basis of her not passing the character test?

For the reasons that I have already given, I consider that Mrs Ruano has engaged in a course of conduct over a number of years that has revealed a disregard for the property of others. Certainly, I accept that she has committed the offences to maintain her drug or, later, her gambling addictions but that does not detract from the seriousness of her behaviour. The seriousness derives not from the seriousness of any one offence but from the number of the offences and the extensive time over which she has been committing them. As I have already found, I am not satisfied that there is a low risk that she will re-offend. Although she has achieved some measure of rehabilitation at this stage, it is too early to make that assessment.

Would refusal of a visa discourage similar conduct in others in the future? This is always a difficult question to answer. At one level, it could be said that it will not for such a decision may never become known. Already, Mrs Ruano’s friends do not seem to understand the reasons for the refusal of her visa in the first place. It is understandable that Mrs Ruano and Mr Leon would not want to tell the Latin American community in Melbourne about the extent of her convictions or, it would seem from some of the letters of her referees, to tell them about them at all. That is not to say that a decision permitting her to remain in Australia would not be made known but whether her past would be revealed or left somewhat veiled as it seems to have been among her friends and acquaintances in recent times is a matter for conjecture. What is clear is that the decision regarding Mrs Ruano’s visa will become widely known. It is possible that there will be those who do know her past in some detail and who are in touch with family and friends overseas. It is possible that a decision that is positive for Mrs Ruano will encourage others to attempt to come to Australia in the same circumstances. What they will have learned from Mrs Ruano’s circumstances is not to re-offend in Australia and so come to the notice of law enforcement authorities through their fingerprints that can be matched with those of overseas’ law enforcement authorities.

That brings me to the expectations of the Australian community. As a general rule, members of the Australian community are sympathetic to people who have had a difficult life in difficult circumstances. For those people, it can be forgiving of the transgressions made by people who are in those circumstances and who strive to better themselves and to make a new start. When she came to Australia, Mrs Ruano might have been a person whose transgressions the Australian community might have forgiven and forgotten. Transgressions committed after her arrival in Australia, however, put her in a different position. They endanger the feelings of safety and security that the Australian community strives to enjoy. They breach the trust that it extends to those whom it permits to come to its shores. I consider that the expectations of the Australian community have been severely disappointed. Given the extent and nature of her offending, I consider that the Australian community would not feel that it need further extend its hand to her.

The best interests of the children are another difficult matter. Their best interests are served by remaining as a family unit but whether they do so will ultimately be a decision for Mrs Ruano and Mr Leon. They have been in Australia for approximately five years in the case of Angelo and four years in the case of Jenifer. They are clearly well settled in their school and in the community. They enjoy all the activities that their school and the community offers them. A decision to deny Mrs Ruano a visa on the grounds of her not passing the good character test will lead to their being uprooted from all that they have enjoyed for the last five or four years.

Mr Kleyhans has said that Angelo and Jenifer would suffer considerably in terms of their development and mentally if they were to be uprooted from Australia and would suffer if they were to be uprooted from their secure environment in Melbourne and from their stepfather, Mr Leon. With regard to the latter, I find on the basis of his evidence that he would travel to Colombia with his wife and the children if she is not permitted to remain in Australia. The children would, therefore, be losing their secure environment of Melbourne but not that of the family unit.

Their leaving Australia, however, would not be the first time that they have been uprooted from what they have known. It happened when Mrs Ruano brought them from Colombia to Australia and it happened when Mrs Ruano took them from the care of her mother, with whom they had lived most of their early lives, to live with her and to do so in Australia. There have already been major changes that they have endured. These would not seem to have been brought to the attention of Mr Kleynhans

For Australians living in Australia, it is understandable if they think that Australia is the best place in the world to live. Whether it is so in an objective sense is something that it is difficult to assess. Having regard to the country reports admitted in evidence, I am satisfied that, when viewed overall, Australia certainly appears to be a much safer country in which to live. Based on that material and on the basis of Mrs Ruano’s evidence, I find that there is a high level of terrorism in Colombia and it appears to be related to drug trafficking to the USA and to Europe. The material does not identify if the terrorism is locality specific or how it affects the general population. Mrs Ruano said that there was a lot of terrorism on the road from Melgar to Bogota and that her children would have to travel it to attend school were she to return to her property in Melgar. Whether they would have to travel that road and be vulnerable to that terrorism would depend upon whether she lived in Melgar or in Bogota or whether they lived in Bogota as they did when she previously was married to and worked with Louis. On the basis of Mrs Ruano’s evidence, I find that neither she nor her two eldest children, who still live in Bogota, have been subjected to what she would describe as terrorism.

Mrs Ruano spoke of the great difficulty in obtaining anything other than a basic education for her two youngest children. I accept that education may well be more difficult to obtain in Colombia than in Australia but on the basis of her evidence I find that her eldest two children completed their secondary education despite the difficulties.

I find that Mr Leon’s interests will also be adversely affected if Mrs Ruano is not permitted to remain in Australia. His life in Australia will be disrupted in that he will not be able to visit his father, to whom he is close, or his step brothers. His other family live in Peru and not in Colombia. In so far as his employment is concerned that is not a difficulty in Australia for he has not been employed for some eighteen months but it is likely to be a problem in Colombia. He fears that he will not be able to find employment in Colombia or, perhaps, Peru should he choose to live there. Unlike Australia where he has had access to the social security system, there is no evidence that such a system is available in Colombia. Mrs Ruano does own a property at Melgar that was previously operated as a restaurant and a rooming house. It was a small business and the land is subject to a debt of an undisclosed amount but it does provide them with some sort of a starting point for generating an income if they return to Colombia. On an emotional basis, there is some family support for them in Colombia in the form of Mrs Ruano’s mother and her two eldest children.

With regard to their overall situation, I consider that the best interests of Angelo and Jenifer lie in their remaining in Australia in their family unit. If theirs were the only interests to which I had to have regard, I would have no hesitation in making a decision accordingly. Theirs, however, are not the only interests and, in the manner set out in Wan v Minister for Immigration and Multicultural Affairs, to which I have referred above, I must also consider other interests. When I do that, I conclude that those other considerations outweigh the children’s best interests. Mrs Ruano has shown a long history of a propensity to commit offences of dishonesty. It is a history that has continued even when she made false statements in order to enter Australia and in order to give herself a new start. She has benefited from Australia’s services in attempting to rehabilitate but sufficient time has not passed to show that she has changed her ways or that she has gained a respect for Australia, its laws and its community. The interests of protecting the Australian community require that she not be permitted to remain on the visas that she has sought. The Australian community would not expect that she be permitted to do so even though there would be considerable sympathy for her two youngest children. Having regard to all of the interests and using the words of the Full Court in Wan v Minister for Immigration and Multicultural Affairs, I have decided that “… the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.” (page 142).

For the reasons I have given, I affirm the decision of the respondent dated 27 August, 2003 and notified to the applicant on 17 September, 2003.

I certify that the one hundred and thirty preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

Signed: ................................................................
P. Paczkowski Associate

Date/s of Hearing 11 and 12 November, 2003
Date of Decision 9 December, 2003

Counsel for the Applicant Mr T. O’Donoghue,

PJ Roberts Pty Ltd

Solicitor for the Respondent Mr B. Wee,
Australian Government Solicitor

[2003] AATA 1240

9 December 2003