Sacharov and Minister for Immigration and Multicultural Affairs - [2002] AATA 224

DECISION AND REASONS FOR DECISION [2002] AATA 224

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/900

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PRASKOVIA SACHAROV
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal S P Estcourt QC., (Deputy President)

Date22 March 2002
PlaceMelbourne

Decision      The decision of the Tribunal is that the decision under review, namely the cancellation of the secondary visa applicant's (Olga Sokourenko) visa, be set aside.
  [Sgd S P Estcourt QC]
  Deputy President
CATCHWORDS
Immigration - preferential family visa - whether applicant fails to pass the character test - past general conduct - false and misleading documents and information - whether discretion should be exercised - Direction No. 21 - hardship to immediate family - best interests of children - decision to cancel set aside.
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.
Migration Act 1958 – ss499, 501

REASONS FOR DECISION

22 March 2002 S P Estcourt QC., (Deputy President)

This is an application by Praskovia Sacharov ("the review applicant") to review a decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") on 22 June 2001, cancelling a subclass 104, preferential family visa granted to the review applicant's granddaughter, Olga Sokourenko (the secondary visa applicant) on the ground that she was not of good character pursuant to s501 of the Migration Act 1956 ("the Act") and did not attract the exercise of the residual discretion under that section.
On 30 December 1996 the secondary visa applicant's mother Natalia Sokourenko (the primary visa holder) applied for and was ultimately (on 29 October 1999) granted a preferential family visa as a "special need relative" of the review applicant, her then 70-year-old mother, an Australian citizen.
Four of the primary visa holder's family were included in the visa, namely:
(a) Michail Popovich the primary visa holder's spouse.
(b)Vira Sokourenko, the then 4-year-old adopted daughter of the primary visa holder and biological child of Olga Sokourenko, the visa applicant.
(c)The secondary visa applicant herself, the then 19 year old daughter of Natalia Sokourenko.
(d)Nadia Sokourenko, the then 3-month-old child of Olga Sokourenko.
In July 2000 the primary visa holder, her husband, Michail and her adopted daughter, Vira travelled to Australia leaving behind in Kiev, in the Ukraine, her daughter Olga and her granddaughter Nadia as a result of the cancellation, just prior to 22 February 2000, of Nadia's visa following the withdrawal of Nadia's father's consent (later reinstated), to her travel. Subsequently, as already mentioned, Olga's visa was cancelled on 22 June 2001.
That decision, currently under review by the Tribunal, was made on the basis that the secondary visa applicant was not of good character in relation to her past and present general conduct and thus did not pass "the character test" under s501 of the Act and had not persuaded the respondent's delegate to exercise the residual discretion under that section to not cancel the visa notwithstanding the failure of the character test.
The relevant provisions of s501 of the Act are:
"501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
501(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." (emphasis added)
Thus it can be seen that the exercise of power under s501 of the Act involves a two stage process, first, a consideration of whether the visa applicant is of good character and second, whether a discretion not to cancel the visa granted 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 balance a number of considerations specified by the Minister's Direction No. 21, made under s499 of the Act, which provides guidance to decision-makers in making decisions to refuse or cancel a visa under s501.
Relevant to the first stage of the process paragraph 1.9 of Direction No. 21 provides:
"In considering whether a non-citizen is not of good character against sub-paragraph 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 of 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 sub-section 501 of the Act, about the non-citizen's character or conduct or both;
…".
The respondent contends that the secondary visa applicant does not pass the character test on the basis of the following past general conduct:

(a)declaring herself to be single on the visa application signed by her on 27 December 1996 when she was in fact in a de facto relationship at that time which the father of her then 3-month-old daughter, Nadia, one Andrea Kireyev.
(b)submitting to migration officials a number of documents stating that she lived only with her mother while living with both her step-father and her de facto partner.
(c)making false and misleading statements to migration officials at an interview on 27 August 1997 to the effect that the father of her first child was unknown to her and that the father of her second child had left her during pregnancy. Both of which statements were admitted to be false at a subsequent interview on 28 June 2000.
(d)submitting in support of her application for a visa a document purporting to be a letter from the Ministry of the Interior in the Ukraine as to the bad character of Andrea Kireyev which letter was bogus.

To these, on the basis upon which the respondent's case was conducted before the Tribunal, I think there can be added two more contentions, namely:

(e)declaring in her visa application that there were no legal or other reasons which could delay her departure to Australia when she knew that claims to access or custody made by Andrea Kireyev in relation to her daughter Nadia could well do so.
(f)declaring in her visa application that she understood she must inform the Australian mission of any changes in her circumstances affecting her application and then failing to notify a change in Nadia's birth certificate made on 7 October 1998 to show Andrea Kireyev as her father.

I find myself to be unable to be satisfied on balance that the secondary visa applicant was living in a de facto relationship with Andrea Kireyev, either at the date she completed her visa application or at any later time and conversely I am not satisfied that she could not at all times be fairly described as a single girl living with her mother.
The relationship with Mr Kireyev was, it seems, a strange one as well as an abusive one. In her evidence before the Tribunal the secondary visa applicant accepted that she had a relationship with Mr Kireyev, but described it as being lovers. She said they had no common property, that he did not support her or her child, that they slept sometimes at her mother's apartment and sometimes at his mother's apartment, a few doors away in the same street, but that they kept their clothes and possessions at the homes of their respective mothers. She said they did not live together except that in 1998 her mother asked her to live for 1½ months at his mother's place so Mr Kireyev wouldn't "scandalize us".
The secondary visa applicant was not contradicted in any of these statements when cross-examined and I do not find that she made any false or misleading statement in this regard in her visa application or that she provided bogus documents in connection with it, in this regard, or that she failed to notify the Australian mission of any relevant change in circumstance, in this regard.
I do however find from both the documentary evidence (Exhibit 1, T40 and T98) of interviews between migration officials and the secondary visa applicant and from her own oral evidence before the Tribunal that she did made both false and misleading statements as to the positions in relation to the respective fathers of her two children, Vira and Nadia, and that she did so, not as a result only, as she would have it, of shame in relation to her position as a twice unwed mother at ages 14 and 19 respectively, but with a view to avoiding possible complications in relation to migrating with her two daughters.
I am unable to find that the letter from the Ministry of the Interior, dated 6 December 1999, directed to Mr Kireyev's bad character was or is a bogus document. Such evidence as there is from both the secondary visa applicant and her aunt, Elena Stacenko, would suggest that the letter provided to the Australian mission (Exhibit 1, T81) was obtained in the same form from the Ministry and it is possible on their evidence of a subsequent visit to the Ministry, upon being informed the letter was believed false, that it is rather the case that the letter should not have been issued by the officer who did so, for transmission to the Embassy, but rather only for local court purposes or perhaps not at all. This may explain the rather ambiguous subsequent undated letter from the Ministry to the Embassy, (Exhibit 1, T12) that the letter with the registration number of 6 December 1999 "was our response to citizen Sokourenko regarding her application and we recommended her to reply to the court." It is unnecessary however for me to make a finding in this regard as the original contention in respect of this document was not pursued on the hearing of this application by the respondent.
Finally, in relation to the secondary visa applicant's conduct, I do find that she did know that the possibility parental claims made by Mr Kireyev might delay both her and Nadia's departure to Australia and that she should have notified the Australian mission of the change in the particulars in Nadia's birth certificate. Whilst perhaps not as blatant as her misconduct in respect of her claims in relation to the identity and conduct of the respective fathers of her daughters at interview with Embassy officials, these two matters are nonetheless misconduct in an immigration sense, (notwithstanding that the failure to notify the change in the birth certificate occurred almost 2 years after the signing of the visa application).
On the basis that the secondary visa applicant provided false information to migration officials in support of her visa application, the Tribunal finds that she does not pass the character test under s501 of the Act.
Ministerial Direction No 21 provides that in the absence of any countervailing factors, of which, having considered the secondary visa applicant's youth and possible shame in respect of her position, I find none, the provision of such false and misleading material constitutes a failure to pass the character test.
Further, and quite and irrespective of the Ministerial Direction, s234 of the Act makes it an offence, in connection with an application for a visa, to make a false or misleading statement or to furnish a document containing a false or misleading statement.
That a breach of s234 of the Act is a serious offence is clear from the penalty provided by the section, namely 10 years imprisonment, or a fine of $110,000 or both.
Such conduct in the Tribunal's judgment renders the secondary visa applicant not of good character on account of past general conduct.
Turning to the residual discretion under s501 of the Act to nevertheless not cancel a visa in the face of bad character, Ministerial Direction No 21 requires the Tribunal to adopt a balancing process between three "primary considerations" and a number of "other considerations".
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 between a child or children and the person under consideration, the best interests of the child or children.
A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No 21, a consideration of:
(a) The seriousness and nature of the conduct.
(b) The likelihood that the conduct may be repeated.
(c)The likelihood that the visa refusal would prevent like offences by other persons.
The Australian Government, according to the Direction, regards serious offences against the Migration Act as very serious. That is not surprising.
It is unlikely that the secondary visa applicant would repeat her conduct given that her application is for a permanent visa, however the remaining consideration of general deterrence is relevant. If the visa applicant is refused entry because of her breaches of this country's migration laws others may be less minded to do so.
As to the expectations of the Australian community, it must be trite to say that the community expects non-citizen to obey its migration laws and to be open and honest with migration officials in relation to visa applications.
As Deputy President McMahon said in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 @ 155-156:
"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."
The Australian community would not expect that immigration misconduct would be rewarded with the grant of a visa, after the non-citizen's breaches have been detected by migration officials.
As to the third of the primary considerations, namely "in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children", I have considered the positions of both Nadia, now aged 5, in the Ukraine, and Vira now aged 9, in Australia.
Whilst I have no expert evidence in respect of Nadia, it is clear from both the secondary visa applicant's oral evidence and from letters written to the Australian Embassy by Andrea Kireyev's mother (Exhibit 1, T100 and T103) that Nadia has suffered from Mr Kireyev's drunken bad temper and has witnessed violent behaviour towards and physical abuse of her mother by him.
The secondary visa applicant was not challenged as to her evidence that Mr Kireyev had beaten her, kicked her and on one occasion stabbed her and that some of these incidents occurred when Nadia was either in the same room or was in an adjacent corridor.
However, the least self serving and the most incisive and poignant evidence in relation to the issue of Nadia's best interests comes from Mr Kireyev's mother.   She stated in a letter to the Australian Embassy dated 27 November 2000 (Exhibit 1, T103):
"I already wrote to your Embassy of the behaviour of my son A A Kireyev, of the fact that he drank much, did not work and was not able to support his family.   I having a pension and a small extra earnings to support Nadia. When he is drunk my son often works off his bad temper on us, his relatives.   Unfortunately all that is done in the presence of his daughter Nadia.   Not long ago Nadia and I had to live two days in Olga's flat since my son does not give a possibility to live a calm life in my flat.
All of us suffers greatly, Olga suffers too.   My son once again tore the telephone cable to her flat and now she has no connection with her nearest and dearest in Australia.   It is difficult to bring up Nadia in such a situation.   And I would like so much her to live in calm surroundings.
When my son is sober he understands that such a family life is abnormal, that this cannot go on for a long time.   And just because he loves Nadia he came to the conclusion that the only way out is to let Nadia and Olga go to Australia.   For me it will not be a simple thing to separate from Nadia, but I realize that I am not immortal and that the child will feel better there, and not here."
As to Vira who, notwithstanding her legal adoption by her grandmother, the secondary visa applicant's mother, Natalia, is well aware that Olga is her mother and Nadia her sister, I have uncontradicted and unchallenged expert evidence from a psychiatrist experienced in children's problems, Mr Edwin Kleynhans.
Mr Kleynhans' evidence is that Vira is depressed, she is suffering developmentally and emotionally as she is longing for her sister Nadia and her mother Olga. He stated, again unchallenged, in summary:
"Should Olga be unsuccessful in her submission Vera, Mrs Sacharov and Natalia would be suffering from long term psychological disorders. The latter two could develop long term physical disorders as well."
As to Vira, this evidence accords with that of her primary school principal, Mrs Anne Marshall a teacher of some 40 years experience, who gave evidence before the Tribunal that Vira was showing signs of emerging depression and anxiety over her separation from her natural mother and her half sister and that the negative life events which led to that circumstance threaten her future health and happiness placing her in an "at risk" category regarding her emotional welfare.
Whilst understanding the respondent's contentions, that Vira has been legally adopted and her best interests are to remain with the primary visa holder, her grandmother Natalia and that Nadia's best interests lie in remaining in the Ukraine where she will be near both her mother and her father who is involved in her life, I do not accept them. In my view a consideration of the evidence I have set out above leads to a very clear conclusion that the overwhelming interests of both the secondary visa applicant's children lie in it being possible for them to be together with their natural mother, grandmother and great grandmother in Australia. That this might result in Nadia losing the involvement of her father in her life may, on the evidence, be no bad thing for her.
As well as the three "primary considerations" set out in Direction No 21 I am required to have regard to relevant "other considerations" which may be taken into account, although generally accorded less individual weight than the "primary considerations".
In this case, relevant "other considerations" are, the degree of hardship which would be caused to immediate family members lawfully resident in Australia and the family composition of the non-citizen's family, both in Australia and overseas.
As has already been observed, the secondary visa applicant's mother, stepfather and grandmother as well as the first of her daughters are lawfully resident in Australia and the evidence indicates that her daughter, her mother and her grandmother all suffer from depression. Specifically as to the visa applicant's mother and grandmother Mr Keynhans said in evidence:
"Mrs Praskovia Sacharov and Natalia are suffering from hypertension and severe depression. Moreover Mrs Sacharov and her daughter are suffering from a generalised anxiety disorder as well, and the former had a heart attack last year."

These, "other considerations" must be given their appropriate weight and I do so, however, even without them I am persuaded that a balancing of the primary considerations leads to a conclusion that in this case the best interests of the secondary visa applicant's children outweigh the protection of the Australian community and its members and the expectations of the Australian community.
It follows, that the decision of the Tribunal is that the decision under review, namely the cancellation of the secondary visa applicant's, (Olga Sokourenko), visa, be set aside.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of S P Estcourt QC., (Deputy President)
Signed:   K L Miller            .....................................................................................
  Personal Assistant
Date/s of Hearing  18 March 2002
Date of Decision  22 March 2002
Counsel for the Applicant        Mr M Gerkens
Solicitor for the Applicant         Fernandez, Canda, Gerkens
Counsel for the Respondent    Ms F McKenzie
Solicitor for the Respondent    Blake, Dawson, Waldron