Ristevska-Kolevska and Minister for Immigration, Multicultural and Indigenous Affairs
[2002] AATA 631
•25 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 631
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/1639
GENERAL ADMINISTRATIVE DIVISION )
Re Vesna Ristevska-Kolevska
Applicant
And Minister for Immigration, Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date25 July 2002
PlaceMelbourne
Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa application not be refused under s501 of the Migration Act 1958.
..............................................
Deputy President
CATCHWORDS
Migration - Spouse (Provisional) Visa - refusal - character - past general conduct - false and misleading statements in connection with visa applications - discretion to grant visa - genuine marriage to Australian citizen - compassionate claims of the Australian partner - hardship to immediate family members - decision to refuse set aside.
Migration Act 1958 – s501
REASONS FOR DECISION
25 July 2002 Mr S P Estcourt QC., (Deputy President)
This is an application by Vensa Ristevska-Kolevska ("the review applicant"),for the review of a decision made by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the respondent") pursuant to s501 of the Migration Act 1958 ("the Act'), to refuse the grant of a sub-class 309 – Spouse (Provisional) visa to the review applicant's husband Borce Kolevski ("the visa applicant").
The delegate's decision, dated 7 November 2001, was made on the basis that the visa applicant was not of good character in relation to his past general conduct and thus did not pass the "character test" and the visa applicant had not persuaded the delegate to exercise her residual discretion under s501(1) of the Act.
The relevant provisions of s501 are:
"S501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either 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."Thus, it can be seen that the exercise of power under s.501 of the Act involves, first, a consideration of whether the visa applicant is of good character and second, whether a discretion not to refuse the visa applied for should nevertheless
be exercised in favour of the applicant in the event of his or her failure to pass the character test.
In the exercise of its jurisdiction the Tribunal is bound to consider a number of factors specified by the Minister's Direction No. 21 made under s.499 of the Act which provides guidance to decision-makers in making decisions to refuse or cancel a visa under s.501 of the Act.
Paragraph 1.9 provides:
"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:
…(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;
…".
There is no room for doubt in this case that sub-paragraphs (b) and (c) of paragraph 1.9 of Direction No. 21 are relevant as the visa applicant has admitted to officials at the Australian Embassy in Belgrade that he both provided bogus documents and made false and misleading statements in connection with applications for the grant of visas and also made false and misleading declarations on approved forms as to his character and conduct.
Counsel for the applicant conceded that a number of matters set out in the respondent's statement of facts were accurate. These matters were as follows:
(a)the visa applicant applied for visitor visas to visit Australia in 1992 and 1995, but was unsuccessful on both occasions. The visa applicant then applied for a subclass 420 (Entertainment) visa, claiming he was a folklore dancer. He has subsequently admitted that he had never worked as a folklore dancer and after entering Australia on 14 February 1996, he never performed or had anything to do with the art of folklore dancing.
(b)while in Australia the visa applicant was granted two subclass 443 (former citizen of Yugoslavia) visas.
(c)on 11 July 1997 the visa applicant applied for a Protection Visa. He has since stated that he did not have any real claims for protection but fabricated these with the assistance of a migration agent. The applications was refused and the visa applicant applied to the Refugee Review Tribunal and appeared at a hearing in May 2000. He has since stated that he lied to that Tribunal.
(d)the Refugee Review Tribunal affirmed the decision to refuse the visa applicant's Protection Visa and he was advised to depart Australia as his then current visa would expire on 14 July 2000. The visa applicant did not depart Australia however and worked illegally until he was located and detained on 18 March 2001.
Pursuant to paragraph 1.9 of Direction No 21, in the absence of countervailing factors, (of which in this case there are none), the foregoing matters quite clearly constitute a failure to pass the character test. Indeed it is difficult to envisage a worse case than the present and I find that the visa applicant does not pass the character test. (I should add that there is no evidence to suggest that in any sense other than a migration sense the visa applicant's enduring moral qualities are in any way deficient so as to be of character concern to the members of the Australian community).
10.Turning to a consideration of the residual discretion under s.501 of the Act brings the Tribunal to a consideration of the matters set out in Part 2 of Direction No. 21.
The three primary considerations to which the Tribunal must have regard 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 between a child or children, and the person under consideration, the best interest of the child or children.
The factors relevant to an assessment of the level of risk to the Australian community include:
(a) The seriousness and nature of the conduct;
(b)The likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)Whether the visa refusal may prevent or discourage similar conduct (general deterrence).
If the visa application were granted, the visa applicant would be unlikely to have an opportunity to repeat his conduct. I am more than satisfied however that the conduct amounts to a serious crime against the Act and as such is considered by the Australian Government to be very serious (paragraph 2.6(c) of Direction No. 21). I am more than satisfied that the refusal of the visa application in this case would act as a significant general deterrent.
Similarly, I am more that satisfied that the expectations of the Australian community are that people who make false claims in bogus visa applications and support those claims with false evidence should not be rewarded by the grant of a visa. Moreso those who overstay their visas and work illegally until detected and deported at cost to the Government.
There is no parental relationship between a child or children and the visa applicant in this case.
Where relevant, other considerations than the primary considerations set out above may be taken into account in the exercise of the discretion, but those matters are generally to be given less individual weight than the primary considerations. These other considerations are set out in paragraph 2.17 of Direction No. 21 and include, relevantly to this case.
"(a) …
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen: in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
(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."
Given that it is the Government's view, as expressed in Direction No 21, that generally "other considerations" should be given less weight than the three "primary considerations" it will be rare in the extreme that the compassionate claims of an Australian spouse will justify the exercise of the residual discretion under s501(1) of the Act in favour of a visa applicant whose migration misconduct has been very serious.
Moreover, given that in assessing the compassionate claims of an Australian spouse in such circumstances, the Direction requires decision-makers to consider the circumstances of the establishment of the relationship and whether the Australian spouse knew that his or her partner was of migration concern at the time of entering into or establishing the relationship, it will only be in very exceptional cases that these lesser considerations of compassion and hardship are capable of carrying the exercise of discretion in favour of the visa applicant.
In my judgment, however, the innocent plight of the review applicant in this application constitutes one of those extremely rare and exceptional cases.
Vesna Ristevska is 23 years old, having been born in Melbourne on 8 December 1978. She is the youngest of two children in what is obviously a very close family. Her father is a retired truck driver, her mother is a machinist presently in indifferent health. Her older brother is 25. She completed year 12 at Laverton Secondary College and then trained as a hairdresser. After completing her apprenticeship she could not find work as a hairdresser and took employment working in the factory where her mother works.
Ms Ristevska was 21 years old, when, on New Year's Eve 1999 she met the visa applicant at a party. He was then 27 years old. She was still living with her parents. He was living with his sister and her husband and daughter.
The couple courted and in February 2000 they commenced living together in the house of the visa applicant's sister. The relationship had the blessing of the review applicant's family.
Part of the uniqueness of this case is that during the ensuing 12 months, including during the period the visa applicant was involved pursuing his bogus protection visa application, he did not tell the review applicant anything of his migration status.
He said, in evidence, that he did not do so because he feared she could change her opinion about him and that something bad would happen to their relationship.
She said, with refreshing frankness, that had he told her from the first, the doubt have been in her mind that he was using her for the purpose of assisting him to get a visa.
As things transpired, the review applicant did not discover the truth until the relationship between the couple was cemented over 13 months later, and then only when the visa applicant was arrested and detained on 18 March 2001.
Then, the review applicant obviously made a decision to support her de facto partner, insisting that he make full admission to migration authorities, marrying him on 29 April 2001 and departing Australia with him as his wife on 25 May 2001 bound for Macedonia.
Although no doubt hoping or even expecting that the couple would be able to get a visa to enable them to return to Australia, the review applicant told the Tribunal that when she married her husband and returned to Macedonia she thought she "could make a go " of things in Macedonia. As it transpired, she could not.
The review applicant said that although she tried really hard, living in Macedonia, she just couldn't, she said she was always scared because of the unrest in that country and always sick because of the poor living conditions.
She started to get headaches and rashes and she suffered from stomach infections from the water supply. She said "I tried as much as I could but I couldn't help being sick. The medication wasn't helping me. I was getting worse".
Despite lasting for six months in these circumstances the review applicant ultimately failed about mid-November 2001, returning to Australia leaving her husband behind in Macedonia. She said she was devastated by having to leave her husband, but she was just getting more and more sick with infections, rashes and migraines, she lived every day with fear and she would lay on the couch all day and not be able to do anything.
I accept the review applicant's evidence, notwithstanding that upon interview by Australian migration officials in Belgrade, she is not recorded as having documented her problems with living in Macedonia. She was not shaken in her evidence before the Tribunal about those matters and her interview in Belgrade was when she was called in for 10 minutes after her husband had been interviewed for about an hour and in circumstances where the main focus appears to have been on his migration misconduct.
I find on the review applicant's evidence and that of her father that she is suffering terribly as a result of her separation from her husband. Moreover, on the evidence of her consultant psychologist, Margaret Morrissey, I find she is experiencing symptoms of depression and anxiety including depressed mood, decreased energy, diminished interest in activities, insomnia, interpersonal problems with her parents and co-workers, panic attacks, skin problems and hair loss.
Ms Morrissey commented in a report dated 14 February 2002 (Exhibit 3):
"Vesna informs me that she had a happy uncomplicated life until she was confronted with the current situation. In my opinion, the symptoms of depression and anxiety that she has suffered may be a direct result of being unable to live with her husband in Australia."
That report was tendered by consent.
Whether these symptoms are as a result of the review applicant not being able to live with her husband in Australia may be debatable, but I am quite satisfied they are a result of not being able to live with her husband. That is to say, as a direct result of the couple's forced separation. I am equally satisfied that, the review applicant has tried and failed to live with her husband in Macedonia and could not reasonably be expected to return to that country in view of her suffering there.
The review applicant gave unchallenged evidence that she is presently getting more sick with headaches, that "she is barely hanging on" and that she has been told she might have to go to a psychiatric hospital. She told the Tribunal she does not know what she will do if her husband is not granted a visa.
In my view the review applicant is in an impossible situation through no fault of her own and her compassionate claims must, in this quite exceptional case, be heard to outweigh other competing factors relevant to the exercise of the Tribunal's residual discretion under s501(1) of the Act.
It follows that the decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa application not be refused under s501 of the Act..
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: .....................................................................................
Administrative AssistantDate/s of Hearing 15 July 2002
Date of Decision 25 July 2002
Counsel for the Applicant Mr David Connolly
Solicitor for the Applicant David Connolly & Associates
Counsel for the Respondent Mr Michael Brereton
Solicitor for the Respondent Australian Government Solicitor
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