Sebastian and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 497
•19 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 497
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1652
GENERAL ADMINISTRATIVE DIVISION ) Re SHELLEY SEBASTIAN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date19 May 2004
PlaceSydney
Decision The decision under review is affirmed. [Sgd] Mr J Block, Deputy President
CATCHWORDS
IMMIGRATION - application for Provisional Spouse (subclass 309) visa –visa refused on the basis that Visa Applicant is not of good character – Visa Applicant remained in Australia as unlawful non-citizen – interdependency visa application maintained following separation from sponsor – failure to withdraw interdependency visa application when Visa Applicant was in relationship with Review Applicant – lodgement of protection visa application containing false claims – provision of false and misleading information in interdependency visa application – best interests of the child primary consideration – decision affirmed
Migration Act 1958 s499, s501
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
REASONS FOR DECISION
19 May 2004 Deputy President J Block PART A – INTRODUCTORY AND GENERAL
1. The decision under review is the refusal dated 10 September 2003 by the Respondent (acting through a Principal Migration Officer, Compliance) in Pretoria of a Provisional Spouse (subclause 309) visa applied for by Patrick Sebastian (“the Visa Applicant”); The application was sponsored by Shelley Sebastian, his wife, who is the Applicant
2. Mr C Jackson of counsel instructed by John de Mestre & Co appeared for the Applicant and Mr B Cramer of Blake Dawson Waldron, solicitors, appeared for the Respondent.
3. The Tribunal had before it the T-documents (in two volumes) numbering over 500 hundred pages lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:-
Exhibit A1 is a witness statement by the Applicant dated 17 February 2004
Exhibit A2 is a witness statement by Benjamin Hodgetts (son of the Applicant) dated 17 February 2004
Exhibit A3 is a statement by the Visa Applicant dated 15 April 2004
Exhibit A4 is a witness statement by Jillian Wolfe dated 18 February 2004
Exhibit A5 is a witness statement by Dennis Wolfe dated 18 February 2004
Exhibit A6 is a witness statement by Michelle L Watkins dated 17 February 2004
Exhibit A7 is a witness statement by Heather Jones dated 17 February 2004
Exhibit A8 is a witness statement by Kandyce Lee dated 13 April 2004
Exhibit A9 is a witness statement by Pauline Piefke (mother of the Applicant) dated 17 February 2004
Exhibit A10 is a witness statement by Benjamin Piefke (stepfather of the Applicant) dated 17 February 2004
Exhibit A11 is a witness statement by Mr Chris Alger dated February 2004.
4. Oral evidence was given by all of the persons who furnished witness statements as referred to in clause 3 and in addition by Dr Morrissey, the Applicant’s general practitioner. In the case of the Visa Applicant, evidence was taken by telephone link to South Africa; similarly in the case of Dr Morrissey, evidence was taken via telephone contact with him at his surgery.
5. The Respondent’s Statement of Facts and Contentions dated 2 April 2004 contains the usual helpful chronology of relevant events under the head of “Facts”. The dates on which relevant events occurred were of particular importance in this matter. I include clause 1 under the heading “Facts”, clause 8 which contains a summary of the Visa Applicant’s activities which, so the Respondent contends, display his disregard for Australian immigration law and clauses 16 to 21 (inclusive) which contain references to other relevant decisions by the Tribunal, as follows:-
“The references given are to the s37 documents ("T...").
FACTS
Date Event Reference
19 June 1962
Shelley Sebastian (the "review applicant") is born in Hobart, Tasmania
Tpp103, 109
25 December 1969
Patrick Sebastian (the "visa applicant") is born in Durban, South Africa
Tpp153, 187
25 February 1986
Review applicant's son, Benjamin Hodgetts, born in Hobart
Tpp97, 112
7 March 1992
Review applicant divorces former husband, Clive Clarence Hodgetts
Tp286
2 January 1997
Visa applicant's twin daughters born in South Africa
Tp125
July 1997
Visa applicant meets Mr Said Msellem in South Africa, they form a relationship and commence living together
Tpp153, 154, 238
25 October 1998
Visa applicant's first entry to Australia holding a subclass 676 visitor visa valid for 3 months
Tp525
25 January 1999
Visa applicant's visitor visa expires and he becomes an unlawful non-citizen
Tp40
18 October 1999
Visa applicant lodges a protection visa application and is granted a bridging visa which is subject to condition 8101 "No work" and permitting him to remain in Australia until 28 days after notification of decision
Tpp280, 283
20 November 1999
Review applicant and visa applicant meet and commence relationship and visit each other regularly
Tpp98, 238, 287-295
11 February 2000
Visa applicant lodges an interdependency spouse visa application on the basis of his relationship with Mr Msellem and is granted a bridging visa which is subject to condition 8101 "No work" and permitting him to remain in Australia until 28 days after notification of decision
Tpp121-136, 283
21 February 2000
Respondent's delegate refuses to grant a protection visa to the visa applicant, finding that his claims are not genuine
Tp66
10 March 2000
Visa applicant applies for review to the Refugee Review Tribunal (RRT) following refusal of his protection visa application
Tp5
15 May 2000
Visa applicant is granted a bridging visa permitting to remain in Australia until 28 days after notification of decision not subject to any other conditions
Tp285
9 April 2001
Respondent's delegate seeks further information from visa applicant regarding his interdependency visa application
Tp178
2 July 2001
Visa applicant provides further information regarding his interdependency visa application, through his agent
Tp183
July 2001
Mr Msellem, the sponsor of the visa applicant's interdependency visa application, severs all contact with visa applicant
Tpp97, 239, 288
6 September 2001
Visa applicant's representatives advise respondent that the visa applicant's twin daughters will no longer be migrating to Australia as part of his interdependency visa application
Tp232
December 2001
Review applicant and visa applicant become engaged to marry
Tpp105, 110
13 December 2001
Visa applicant's agent advises respondent of visa applicant's intention to withdraw his interdependency visa application
Tp235
8 January 2002
Respondent acknowledges withdrawal of visa applicant's interdependency visa application
Tp237
13 January 2002
Visa applicant and review applicant marry in Australia
Tp316
17 April 2002
RRT affirms the delegate's decision to refuse to grant a protection visa, finding that the visa applicant's protection claims were not genuine
Tpp89-90
13 May 2002
Visa applicant seeks ministerial intervention under section 417 following the RRT's refusal of his protection visa application
Tp96
17 October 2002
Ministerial intervention under section 417 is declined and communicated to the visa applicant by letter dated 28 October 2002
Tp120
25 November 2002
Visa applicant departs Australia
Tp525
23 December 2002
Visa applicant lodges the spouse visa application the subject of this review
Tp238
15 May 2003
Visa applicant and review applicant's daughter, Samara Maryanna Sebastian, is born in Australia
Tp461
10 September 2003
Respondent's delegate refuses to grant a spouse visa to visa applicant
Tp13
16 October 2003
…
Review applicant lodges the current application for review of decision with this Tribunal
Tp3
8.The visa applicant as (sic) been involved in activities indicating contempt or disregard for the law by:
(a) Remaining in Australia for an extended period as an unlawful non-citizen:
The visa applicant’s visitor visa expired on 25 January 1999. He was not granted another visa until 18 October 1999 when he was granted a bridging visa upon lodging a protection visa application.
(b)Maintaining an application for an interdependency visa and/or actively continuing that application following his separation from the sponsor of that application:
The visa applicant’s interdependency visa application was withdrawn on 8 January 2002. However, he stated at the interview that his relationship with Mr Msellem, the sponsor of that application, ended in July 2001. The visa applicant, through his agent, stated in a submission in support of the spouse visa application that Mr Msellem severed all contact with the visa applicant at that time. The visa applicant, through his agent, provided further information to the Respondent regarding that application in July and September 2001 after the relationship had ended.
(c)Maintaining an application for an interdependency visa and/or failing to withdraw that application when the visa applicant was in a relationship with the review applicant:
The visa applicant and review applicant first met in November 1999 when they commenced a relationship and visited each other regularly from that point in time. They began to live together and became engaged to marry in December 2001. They were married in Australia on 13 January 2002. However, the visa applicant did not advise the Respondent of his intention to withdraw his interdependency visa application until 13 December 2001.
(d)Lodging an unmeritorious protection visa application and maintaining false refugee claims through merits review in the RRT and an application for Ministerial intervention:
The visa applicant lodged a protection visa application on 18 October 1999, almost 12 months after arriving in Australia and almost 9 months following the expiry of his tourist visa. He was granted a bridging visa when he lodged his protection visa application. The visa applicant claimed to have fled South Africa because he feared persecution at the hands of ANC supporters and the incumbent government for reason of his support for the UDM, a rival political party. In his application for an interdependency visa the visa applicant stated that the reason he left South Africa was to join Mr Msellem in Australia. The delegate found that the visa applicant’s protection claims were not genuine. On 10 March 2002 the visa applicant applied to the RRT for review of the Respondent’s delegate’s decision to refuse to grant him a protection visa. The RRT affirmed the delegate’s decision on 17 April 2002. The RRT did not accept the visa applicant was telling the truth about his reasons for leaving South Africa and that he was prepared to tailor his evidence to what he perceives to be his advantage. Following the RRT’s decision, the visa applicant sought Ministerial intervention on 13 May 2002. Ministerial intervention was refused on 17 October 2002.
(e)The provision of false and misleading information in his interdependency visa application or his spouse visa application:
In his statutory declaration in support of his interdependency visa application the visa applicant stated that his former de facto wife in South Africa, who was pregnant with his children, had left him because she did not feel she would be financially secure with him despite the fact he had told her he would support her and the children to the best of his ability. During his interview in relation to his application for a spouse visa made on the basis of his relationship with the review applicant the visa applicant stated that his relationship with his former de facto wife in South Africa had ended before he knew she was pregnant.
…
16.The Tribunal in the past has also treated immigration malpractice as very serious. In Lachmaiya v DIEA (1994) 19 AAR 148, Deputy President McMahon noted, at paragraph 35, that:
“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 …Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
The risk of recidivism
17.The visa applicant has shown a disregard for Australian law in order to obtain advantages for himself. The Respondent contends that this conduct indicates that there is a real risk that the visa applicant will not respect the law if he is allowed to enter and remain in Australia. The Respondent contends that it is open to the Tribunal to find that there is a real risk that the visa applicant might engage in similar conduct of providing false information to government agencies if he perceived there might be benefit to himself by so doing.
18.The Respondent contends that the Tribunal should also have regard to the fact that the visa applicant only left Australia after he realised that his spouse visa could not be lodged while he was in Australia. The Respondent contends that the visa applicant made no attempt to regularise his visa status in the 9 month period following the expiry of his tourist visa. Nor is there any evidence or suggestion by either the visa applicant or review applicant that the visa applicant had any intention or made any effort to do so.
19.In Beale and Minister for Immigration and Multicultural and Indigenous Affairs (AAT) [2002] AATA 714, Deputy President Wright QC noted at paragraph 33, that:
"In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person's past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community."
General deterrence
20.The refusal of the visa to the visa applicant will send a clear message to others that conduct similar to that of the visa applicant, involving abuse of Australia's migration system and indicating disregard for the law, is not acceptable to the Australian community and non-citizens can expect to be refused entry if they engage in similar conduct (paragraph 2.11 of the direction). In this regard see: Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, [39].
21.In Re Ayaad and MIMA [2000] AATA 935 at paragraph 47, Purvis DP stated that:
"These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered."
6. As a matter of balance I include the whole of the Applicant’s Statement of Facts and Contentions dated 24 February 2004 as follows:-
“Facts.
1.The Visa Applicant (referred to hereafter as “Mr Sebastian”) is a citizen of South Africa who came to Australia on a three month visitor’s visa on 25 October 1998.
2.In February 1999, Mr Sebastian located Mr Said Msellem, an Australian Citizen in Sydney of Tanzanian origin, who had been his lover in South Africa.
3.The relationship with Mr Said was a genuine, loving, and committed relationship, and they lived in a de facto relationship from the time they were reunited (See T docs, p (“Tp”) 153, for Mr Sebastian’s statutory declaration).
4. Mr Sebastian lodged a protection visa on 18 October 1999.
5.In November 1999, Mr Sebastian met the sponsor of the current application, Ms Shelley Sebastian (then Shelley Hodgetts), and they became friends.
6. Mr Sebastian lodged a protection visa on 18 October 1999 (Tp37).
7.On 11 February 2000, Mr Sebastian lodged an application for a visa on the basis of his relationship with Mr Said (Tp152).
8.In July 2001, Mr Said went to visit family in Germany, saying that he intended to return to Australia. Mr Sebastian believed that the relationship would continue.
9.From that time, Mr Sebastian spent more time with Shelly, and a relationship developed which became physical in September 2001.
10.By December, Mr Sebastian realised and accepted that Mr Said was not returning to Australia, and the relationship was over.
11.On December 13, 2001, Mr Sebastian withdrew his application for an interdependency visa (Tp236).
12.Mr Sebastian moved in with Shelley and her son, Ben, shortly before Christmas 2001, and they married on 13 January 2002.
13.Mr Sebastian’s protection visa application was rejected by the Refugee Review Tribunal on 17 April 2002. His section 417 application was rejected on 17 October 2002, and communicated on 28 October 2002.
14. Mr Sebastian left Australia for South Africa on 25 November 2002.
15. On 23 December 2002, Mr Sebastian’s spouse visa application was lodged.
16. On 15 May, 2003, Shelley gave birth to Mr Sebastian’s daughter, Samara.
17.On 10 September 2003, Mr Sebastian’s application for a spouse visa was rejected.
Contentions.
1. Considering Mr Sebastian’s conduct as a whole, including the evidence of those who are aware of his immigration conduct, Mr Sebastian’s character is not so deficient that he is of bad character.
2. Even if Mr Sebastian is held to be of bad character, the discretion to grant him a visa should be exercised in his favour for the following reasons:
3. Sebastian’s conduct does not place him at the more serious end of the scale, in terms of conduct capable of constituting bad character.
4. It is in the best interests of his child, Samara to remain in Australia, and to have her father present as she grows up, and that is a primary consideration.
5. It would cause great hardship to his wife, Shelley Sebastian, and his step-son Ben Hodgetts (see his statement at Tp465) if he were not allowed to return to Australia, as would their moving to South Africa.”
7. Exhibit A3 was executed by the Visa Applicant on 15 April 2004, a few days before the hearings commenced. In it, and belatedly, the Visa Applicant admitted that his protection visa application contained allegations which were false. Exhibit A3 reads as follows:-
“Statement.
Patrick Sebastian.
1. My name is Patrick Sebastian.
2.I admit that I exaggerated my claims in my protection visa application in the hope that it would help me to stay in Australia.
3.I was a member of the UDM, and I was with some friends from the UDM when a police officer was shot in 1998. I did not shoot him.
4.I was worried that I would be in trouble because I had been with friends when the police officer was shot, and I was worried that my involvement with the UDM might cause me problems, but that is all.
5.I told the Refugee Review Tribunal that I undertook military training for the UDM in various places. I did not. Also, I was not beaten by an ANC youth leader in Tembisa.
6.I was not otherwise mistreated by the government because of my involvement with UDM.
7. In particular, I was not arrested, detained and tortured by the police.
8. I have not had any problems since I returned to South Africa.
9.The main reason that I went to Australia was to be with Said who had been my partner in South Africa, not because of any fear that I had in South Africa.
10.I am worried about my wife, Shelley, and I am worried about Ben, Shelley’s son. I feel things have gone very wrong between Shelley and Ben.
11.I speak very often to Shelley, and I speak regularly to Ben. Shelley tells me that she is unhappy, and that she and Ben have been fighting a lot. She tells me that Ben is physically aggressive towards her.
12.Ben tells me that he is not happy with things the way they are. He tells me that he misses me, and he doesn’t like the way that it is with his mother, without me there. I felt that when I was there, I was able to offer him emotional support.
13.I understand that one of the questions is whether Shelley could come to South Africa to live with me.
14.There would be a lot of difficulties. I have been unable to find work, so I cannot support her. The unemployment rate is 40%.
15. It would be very difficult for Shelley to find work as well.
16.If you don’t have money, it is very hard to get good health care, and good education.
17.It would be very difficult for us as a mixed couple. Neither white nor black people would want to be her friend: white people will talk to her but not to me, and black people do not want to have white friends.
18. It would not be safe for her to walk at night.
19.It would also be hard for Samara. She wouldn’t only be denied good health care and education. She would also not have her grandmother, Shelley’s mum, to help, as she does now.
20.I am sorry about the lies that I have told the government of Australia. I am sorry about the mistakes I have made, which have impacted upon my family, I feel worried and guilty about what I have put them through.
21.I really worry about my wife and child though, and I want the opportunity to be with them again, and to get on with our lives together.”
.
8. The Visa Applicant is fluent in English; however his English is so heavily accented that it was not always easy to comprehend. This was so in respect of the representatives of the parties; it was also so for me and even though I was born and brought up in South Africa and where I practised law for some 25 years, before emigrating to Australia in 1978 after the Soweto riots. I would anticipate that the transcription of the evidence by Auscript would not be easy and so that there would be notations at times that the evidence was not intelligible. Offers of an interpreter were made and refused. I was satisfied however that the refusal was justified and that the Visa Applicant is indeed fluent in English.
9. It did occur to me during the course of the proceedings that the Visa Applicant might feel concerned at the fact that the presiding member is a former South African and white, while he is a black South African. I emphasise that I did not feel that there was any possibility of bias on my part. However that is not the test; a suggestion that I would be prepared, if the Visa Applicant was in any way uneasy, to entertain an application for my refusal met with the response that no such application would be made.
10. Throughout the proceedings references were made to political parties and places in South Africa. The term “ANC” refers to the African National Congress which has, since Mr Mandela was released and free elections were held, formed the ruling government of South Africa. In very recent elections, it was returned to power with an increased majority. The term “UDM” refers to the United Democratic Movement another but very small political party; its head is General Bantu Holomisa who was formerly the President of the Transkei; which was a (supposedly independent) Bantustan. Its very small percentage of the vote was reduced still further in the recent elections. There is no evidence of any kind that the ANC has since coming to power ever persecuted members of UDM (or anyone else) and indeed the ANC is so powerful that it has no need to persecute any of its political opponents. The UDM in particular is not a political party which presents any threat of any kind to the ruling South African government.
11. Hillbrow is a suburb of Johannesburg; it was at one time fairly affluent; it has for some time been going steadily downhill. Edendale or Edenvale (referred to by one of the character witnesses) is not on the outskirts of Hillbrow. Brakpan and Benoni are both large towns to the east of Johannesburg and roughly an hour away.
12. While on matters of a general nature I think I can say that it is commonly known that unemployment in South Africa, particularly for the uneducated and untrained, has been and remains a serious problem. The transition of power to Mr Mandela and the ANC has resulted in a growing and affluent black middle class and there has been some improvement in housing and other facilities, but not to the extent which is required. South Africa is by far the most prosperous and industrialised country in that region and is undeniably wealthy by African standards not least because of its reserves of gold, diamonds, precious metals and base metals. However conditions for the unemployed are bad; there is no social security system. During the course of the hearings there was some discussion of medical facilities in South Africa. When I left South Africa medical facilities were good for persons who could afford to pay for them but were otherwise wanting. Evidence was given of an operation to Anna, who is one of the Visa Applicant’s twin daughters and where there was no mention of cost. I understand that medical care is now available to the whole population and without cost. This was not put to the Applicant and the Visa Applicant at the hearings and indeed I was not then aware that this is so. Nothing turns on this aspect because, as will be noted, it is not, in practical terms, possible for the Applicant to be reunited with the Visa Applicant in South Africa. This is so, quite simply because he is unemployed and given his lack of education and skills, likely to remain so. She, the Applicant, is not so educated or well- trained that she would be able to obtain employment in South Africa in competition with black Africans who enjoy a considerable degree of preference. For her to join him in South Africa is not realistically possible (even apart from her fears as to how she would be treated there) because he can provide her with neither support nor accommodation of any kind.
13. The Applicant and one other witness (Kandyce Lee) gave evidence as to South Africa which demonstrated a lack of knowledge of current conditions in that country. The Applicant believes that as one of a mixed couple she would be ostracised; clauses 25 and 26 of her statement, Exhibit A1 read as follows:-
“25.It would be difficult for me to move to South Africa. It is still very difficult having a mixed marriage. Even here, when I go to parties with African women, the African women won’t speak to me.
26.Racism is worse over there than here. I would be ostracised by both the white and black communities. I’ve heard that white people, if they see that you are with a black person, they won’t talk to you.”
14. And Kandyce Lee in Exhibit A8 described South Africa in lurid terms; clauses 22 to 26 of Exhibit A8 read as follows:-
“22.I do not agree that Shelley should have to leave Australia. I visited South Africa two years ago. I drove though a couple of areas that were black areas only. I pulled over to ask for directions and a gun was pointed at me. They made sure I was a tourist and not a white South African. I noticed the employment sections of the newspapers were scarce.
23.The white South Africans were against mixed relationships. They boasted about their salaries being higher than the black people. They paid the blacks very little. There was no award wage. The black people were friendly and happy.
24.People carry guns everywhere. They are for sale on the sidewalk. When you look on the news there are always killings. There are police rushing everywhere to find people who have just been shot. Wherever you walk, when you go to the casino, you go through a metal detector and you must take out your gun and put it in a security box until you leave.
25.When I stopped at the traffic lights children pretended to be hit by cars so that drivers would get out and check. I heard that people would then run up and rob you when you got out of the car. When it happened to me I did not get out because I could see that people around seemed to be laughing.
26.When I spoke to Patrick he said that he would not take the risk of taking a mobile phone with him out of the house. He says that he wears simple clothes when he goes out of the house”
15. In fact and in South Africa today, mixed marriages are still unacceptable to some, but by no means the whole population of South Africa. And while crime is an ongoing problem, the picture painted by Kandyce Lee is exaggerated. Nor are conditions the same throughout South Africa. One problem in the Cape in particular is that real property is being bought by foreigners (particularly from the United Kingdom and Germany) to such an extent that prices are being driven beyond the reach of the South African population itself.
16. The hearings lasted three days. On the second day, the examination of the Visa Applicant could not be resumed after the lunch adjournment because it was not possible to make contact with him. I accept that this did not occur through any fault on his part.
PART B – THE EVIDENCE OF THE APPLICANT
17. The Applicant was born on 19 June 1962. She was married previously but that marriage broke up when her first husband embarked on an affair with another woman. When her marriage broke up, she moved from Tasmania to Newcastle. She now lives at Warners Bay which is near Newcastle. A son (Benjamin Hodgett) of her first marriage lives with her. She received maintenance for Benjamin from her first husband until Benjamin turned 18.
18. The Applicant works at John Hunter Hospital as a ward clerk. In this capacity she performs clerical work. This position was full time until her daughter Samara was born in May 2003. She now works one day a week at the hospital. Her financial position is difficult; she receives $740.00 per fortnight by way of social security and earns $230.00 per fortnight (net of tax) from the hospital. She pays $370.00 per fortnight by way of rent. Her rental obligation was previously lower when she occupied a home provided by her mother and stepfather but that home is in the process of being sold, and she, the Applicant, was obliged to obtain other accommodation. Warners Bay was chosen as a suitable area and one which is cheaper than would be the case with Newcastle proper. The Applicant said that she sends the Visa Applicant $100.00 per month for his support. Clause 15 of Exhibit A1 provides:-
“15.I used to send him money every fortnight, now it’s once a month. I was sending him $150.00 Australian a fortnight, then it was down to $150.00 a month then $100.00.”
19. An affidavit by the Applicant furnished in connection with the spouse visa application is contained at Tpg287 to Tpg290. Clauses 16 to 23 inclusive of that affidavit read as follows:-
“16.My relationship with Patrick developed more seriously when his partner Said left to visit Germany for family reasons in July 2001. Said was only meant to go away for about three weeks, but this turned into months with no communication between them.
17.I started to visit Patrick quite often at his flat in Redfern where I often stayed over. We would go to the club and do other things together. Our relationship gradually turned into a physically one and we became very close. There were strong feelings on my part towards Patrick since the beginning.
18.In December 2001 Patrick and I became engaged and he moved to Newcastle to live with me and my son. We were married on January 13th 2002 where my son gave me away. Our wedding day was a great day and attended by our closest friends. Everyone who was there commented on how much in love we are and happy.
19.My son’s life became a more stable one and he seemed a lot more settled in everyday family life.
20.My son, Benjamin is currently in year 11 at high school. His studying is very important to us as is a stable family environment. Unfortunately this been somewhat uprooted at Patrick’s leaving. As Patrick hasn’t had the chance to a good education he wants Benjamin to have every chance to achieve well.
21.After all these years of not having a father figure close by and now he finally has one – it has all been torn apart. Benjamin thinks the world of Patrick.
22.Finally, for some time now, Patrick has been contributing towards rent and other house expenses and everyday living expenses. This has helped me considerably as it is very expensive living on your own with one teenager.
23.Patrick is an extremely hard worker and he budgets money well. He is trying to teach me to budget better especially as he has to go away. He is very worried about us being on our own financially. We were just starting to save for a house and a better car but now all our savings are going towards airfares and legal fees.”
20. The Applicant first met the Visa Applicant in Sydney when he was living in a homosexual relationship with Said Msellem (“Said”) in a unit leased by them jointly in Sydney. The Applicant was visiting Sydney from Newcastle. That initial contact resulted in further contact often involving the Applicant and the Visa Applicant as members of a group which went dancing. Said as a Muslim did not like dancing; according to the Applicant he tended to be silent and withdrawn. Moreover he was never friendly to her and, she believed, jealous of her.
21. In July 2001 Said went to Germany for family and business reasons. The Applicant started visiting Sydney more frequently and stayed at the flat in which the Visa Applicant was living and which he had taken with Said. Said telephoned the Visa Applicant from Germany shortly after his arrival and sent a postcard a week later, but otherwise has not been heard from again. The Visa Applicant said that he provided Said with “show“ money of $2,000.00 for the purpose of his trip to Germany; the term “show” money refers to funds which are designed to satisfy immigration authorities (in this case the German authorities) that the traveller is possessed of financial means. Said had promised to send that money back from Germany, more particularly because the Visa Applicant would need it for the purposes of paying rent, but he did not do so. (I will revert to Said later in these reasons in the context of the Visa Applicant’s evidence.) The relationship between the Visa Applicant and the Applicant became physical in September 2001. Clauses 3 to 7 of Exhibit A1 read as follows:-
“3.As I said in my statutory declaration, Said, Patrick’s partner went overseas in July 2001. I visited Patrick in Sydney quite often from that time, and our relationship became physical in September, 2001. We got on very well, and the sex part of it was just the last stage of it.
4.In about October, we decided that he would come and move in with me in Newcastle, where it would be cheaper.
5.About November, we talked about getting married, and we bought the ring on December 20, 2001. We moved in together in December 2001, before Christmas.
6.At that stage Patrick was working in Redfern, for a cleaning company. He would commute from Newcastle, leaving about 2-3 in the morning, and he would be back by 5pm, and he would pick me up from work in the car that he had bought.
7. He had to stop working when he lost his working rights.”
22. The Applicant knew even before she married the Visa Applicant that his status in Australia was very dubious indeed. She said that she participated in meetings with the Visa Applicant’s legal advisers both before and after marriage. She said that she did not ever inquire too deeply as to his alleged refugee claims. However at the time of the marriage, his application for a protection visa had been refused; he had sought the review of that application by the Refugee Review Tribunal (“RRT”) and the decision of the RRT was being awaited.
23. The Applicant gave evidence as to the health of Samara. She said that Samara has required medical attention for respiratory problems, and in particular asthma. Her evidence in this context was confirmed by Dr Morrissey who gave evidence by telephone (on the second hearing day).
24. The Applicant gave evidence also as to the fact that the Visa Applicant has been a good influence on Benjamin. She said that his behaviour at school improved and that he was again suspended only after the Visa Applicant returned to South Africa.
25. The Applicant said that Samara was conceived in August 2002 only a short time prior to the Visa Applicant’s return to South Africa. She said that they were anxious to start a family and referred in this context to her “biological clock ticking”.
26. The Applicant described the Visa Applicant as careful and responsible about money in contrast with herself. She said that the Visa Applicant disliked debt whereas she owes considerable sums and, in general terms, is not very responsible in respect of money matters.
27. The Applicant was aware of the fact that the Visa Applicant had previously had a de-facto relationship with Joyce who gave birth to twin girls of whom the Visa Applicant is the father, in January 1997. She has in the past been in contact with Joyce and contacted her at Christmas in 2003 in an endeavour to send presents of clothing to Joyce for the twin girls. Her offer was refused by Joyce because Joyce had received no support from the Visa Applicant for the twin girls.
28. The Applicant said, as I have mentioned, that she had been sending money regularly to the Visa Applicant. The amount is currently $100.00 per month although it has been considerably more in the past. The Visa Applicant in his evidence said that her support ceased some time ago. The Applicant was not examined as to the Visa Applicant’s statements in Exhibit A3 to the effect that he is concerned that Benjamin is being physically violent to her. The Applicant said also that while working in Australia he, the Visa Applicant, earned $400.00 per week as a cleaner. His evidence was that he earned $600.00 per week cleaning two police stations in Glebe and Annandale.
29. The Applicant said that she has been depressed since the Visa Applicant left Australia. In general terms I am inclined to accept her evidence with one significant reservation and that is that it is likely that she knew more about the Visa Applicant’s situation than she was prepared to disclose. I doubt whether it was possible in all the circumstances for her not to be aware of the true position. To marry and to have a child in these circumstances was risky in the extreme.
30. The Respondent said in clause 31 of his statement of facts and contentions that “the visa applicant is in a genuine relationship with the review applicant, an Australian citizen who has ties to Australia”.
31. Nevertheless Mr Cramer put it to the Applicant that she married the Visa Applicant in order to enable him to stay in Australia. She replied that they wanted to have a child; it was in this context that she referred to her “biological clock ticking”. She indicated that they married for this purpose. She said that her relationship with the Visa Applicant commenced between July and September 2001 when there was still a possibility that Said would return, but said that it became physical only in September 2001. She agreed also that the relationship began to an extent even before Said left Australia; she said that prior to his departure they were “best friends”. After Said left, the Applicant stayed at the Redfern flat every weekend.
32. Although the Applicant said that she and the Visa Applicant would be reunited (and hopefully in Australia), when asked what she would do if the decision was affirmed, she said that she could not afford to go to South Africa for financial reasons.
33. The Applicant said also that the Visa Applicant has not had any contact with his daughters in South Africa for a long time because Joyce will not permit access in consequence of his failure to provide any financial support for them.
34. The Applicant said as regard Benjamin that he had had virtually no relationship with his own natural father and that the Visa Applicant has in effect become a substitute father. She said that Benjamin left school at the end of 2003 having achieved an HSC result which was poor and is now working for Trend Windows in Newcastle and in which position he delivers windows in the region. He has ambitions in the field of art, and according to the Applicant, has talent.
35. I consider that I can accept that the Applicant is genuine in her desire to be reunited with the Visa Applicant and that at least from her point of view the relationship is perfectly genuine. Having carefully considered the evidence before me I am not at all convinced that the Visa Applicant’s aims and desires are motivated by the same considerations, and indeed the probabilities tend to indicate a different motivation.
PART C – BENJAMIN HODGETTS
36. Benjamin said that he was angry about the Visa Applicant’s departure. He said that he was angry in particular because he grew up without a father and did not want his sister Samara to have to do the same. He went on to say that the Visa Applicant is prepared to work long hours to bring home money and “what did he do anyway? He overstayed his visa”.
37. When shown Exhibit A3, the Visa Applicant’s statement, he denied that he had ever been physically aggressive towards his mother although he did say that they were sometimes angry with each other. He said also that from his wages he contributes $50.00 per week to his mother for board and lodging and sometimes buys food in addition.
38. In contradiction of his mother’s evidence in this regard, Benjamin denied that he has had no relationship with his natural father. He said that his father has limited means but there has never been anything to prevent contact between them and that there has been contact at periodic intervals.
39. For Benjamin to blame his troubles at school on the Visa Applicant’s departure seemed to be exaggerated given that his mother and the Visa Applicant lived together for less than a year.
PART D – THE VISA APPLICANT
40. It was suggested to me in closing submissions that the Visa Applicant deserves credit for the fact that he admitted that his protection visa claims were false. I do not agree; he did so only at a very late stage, a few days before the hearing commenced, and after he had made and persevered with those false claims first in his original application, then before the RRT and finally in an application for ministerial intervention under section 417 of the Migration Act 1958 (“the Act”). In my view it is fair to say that he had little option but to admit that his claims were false. The RRT in particular did not believe him; in a lengthy and careful decision the RRT found that his evidence was not credible. That decision appears at Tpg69 to Tpg95. I include a part only of that decision under the head of “The Applicant’s Evidence” commencing at Tpg73 up to and including the penultimate paragraph on Tpg78 as follows:-
“The Applicant’s evidence
The Applicant is aged in his early thirties. In his original application he said that he had been born in Durban but that for at least the preceding ten years he had been living in Johannesburg. He said that he had never attended school and that he had never had a job. The Applicant said that he had left South Africa because he was an activist of the United Democratic Movement (UDM). He said that he had been persecuted by the government and members of the ruling party, the African National Congress (ANC). He said that if he were to return to South Africa he would be killed or detained and tortured by the government and the ANC because he was a UDM activist.
In a statutory declaration dated 23 November 1999 the Applicant said that he had been born in a village called Nondweni which he said was in the town of Durban. He said that his parents had been killed when he had been 13 years old and he had made his way to Johannesburg in 1982. He said that he had lived on the streets in Hillbrow but he said (contrary to the details in his original application) that in 1992 he had moved to a town called Brakpan. He said that one day there had been an ANC rally in Brakpan and he had joined. He said that he had been a follower of Bantu Holomisa and he had joined the UDM when Bantu Holomisa had broken away from the ANC in 1997. He said that he had returned to Hillbrow from Brakpan and had found a job as a labourer in a factory in Beloni (sc.Benoni).
The Applicant said that in January 1998 he had been offered military training at one of Holomisa’s camps in Transkei. He said that he had completed his training in June 1998 and had been ‘appointed as a youth right wing on a special tasks as one of Holomisa’s right hand leader in East Rand (ie Johannesburg East)’. He said that secret meetings had been held at his apartment in Hillbrow and he had become a prominent member of the UDM, helping to recruit people from areas such as Thembisa (sc. Tembisa), Daveyton and Wattville in the East Rand. The Applicant said that in mid-July 1998 he had been approached by two youths wanting to join the UDM and he had given them his address. He said that after two weeks he had had a gun pointed at him in his apartment in Hillbrow and had been warned that his days were numbered. He said that his popularity in the area had made him a target of the ANC.
The Applicant said that three weeks later, some time in August 1998, he had gone to Tembisa to visit some of the people he had recruited. He said that he had been attacked by three people, severely beaten and left to die in the garage of an ANC youth leader in Tembisa. The Applicant said, however, that at about 2.00am he had found himself in the streets of Hillbrow. He said that he did not know how he had got there. The Applicant said that in September 1998 he had been framed by the police on a charge of theft and violence. He said that he had been taken to the Tembisa Police Station where he had been punched, attacked by dogs and tortured with electricity. He said that it had come to light that his arrest had been planned and ordered by the ANC. The Applicant said that he had been ‘detained and released secretly after 3 days at custody with no case number’.
The Applicant said that two weeks later, in September 1998, he and three other members of the UDM had driven back to Tembisa for a meeting. He said that they had had firearms ‘for protection’. He said that between Kempton Park and Benoni at a place called Bonaero Park they had been stopped by two police officers. He said that one of the police officers had been one of those who had tortured him when he had been detained at the Tembisa Police Station. The Applicant said that this officer had asked him, ‘Are you still continuing with your problems? Last time you were lucky but this time you will not get away with this.’ The Applicant said that his ‘fellow comrades’ had been angry and had opened fire on the police. One police officer had been killed on the spot and the other had escaped. The Applicant said that he and his colleagues had run away. Two of them had been arrested after a few days and the third had been gunned down. The Applicant said that he had been wanted by the police dead or alive. He said that he had hidden in KwaNdebele in the Mpumalanga region but he had subsequently come back to Johannesburg where he had stayed in his girlfriend’s apartment. He said that he had heard that his two ‘comrades’ who had been arrested had died in prison. The Applicant said that he had stayed with his girlfriend for three days and she had done everything for him to save his life and flee South Africa.
The Applicant noted that he had come to Australia as a visitor in October 1998. He said that he had been supposed to return to South Africa in January 1999 but ‘unfortunately I could not make it as I had already fled the country to evade persecution by the ANC’. He said that he had lived on the streets in Sydney and had been helped by the Salvation Army and by ‘another African brother’ who had accommodated him for three months. However he said that it had not been until he had by chance seen the notice board of a legal representative that he had made his application for a protection visa. The Applicant said that if he were to return to South Africa he would be arrested and killed like his comrades. The Applicant’s representatives produced what purports to be a copy of the Applicant’s membership card in the UDM, issued on 16 November 1999.
In the decision under review the primary decision-maker noted that the Applicant had claimed in his original application to have taken a holiday in Malawi from 28 May to 5 June 1998, at the time when he had said in his statutory declaration that he had been undertaking military training in Transkei, and he had claimed to have taken a holiday in Tanzania from 31 August to 24 September 1998 whereas in his statutory declaration he had claimed to have been arrested and tortured at the Tembisa Police Station during September 1998 and ‘[t]wo weeks later in September 1998’ to have had the encounter with the police in Bonaero Park in which one police officer had been shot.
At the hearing before me the Applicant said that some of the answers in his original application were not correct. He said that he had not in fact gone to Malawi from 28 May to 5 June 1998 and to Tanzania from 31 August to 24 September 1998 for a ‘holiday’ (as he had stated in answer to question 28 on Part C of the application form). He said that he had gone to these two countries for secret military training for the UDM. I noted that in his statutory declaration the Applicant had said that he had undertaken military training in Transkei from January to June 1998. The Applicant said that this had in fact been from January to 27 May. He said that they had then gone to Malawi for ‘physical training’ and ‘military training’. He initially said that they had gone to Blantyre for this training but he subsequently said that it had been in the mountains, in a village, and that he could not remember the name of the village. He said that he had been trained in the use of weapons but he was unable to tell me the makes of the weapons he had supposedly been trained to use. He said that they had also been trained to detect any kind of bomb.
The Applicant said that he had been born in Durban. I noted that he had said in his statutory declaration that he had been born in a village called Nondweni. The Applicant said that this was part of Durban. I put to him that it was not. (Nondweni is a village near Vryheid in the north of KwaZulu-Natal.) The Applicant insisted that it was. He confirmed that he had moved to Johannesburg in 1982 but he said that he had not lived in Brakpan from 1992 to 1997 as indicated in his statutory declaration. He said that he had moved to Brakpan in 1992 but he had moved back to Hillbrow in the middle of 1994. He said that he had moved back to Brakpan in 1996 because of problems with his de facto wife and that he had moved back to Hillbrow again in September 1997, as he had said in his statutory declaration. The Applicant said that his twin daughters had been born on 2 January 1997, not 1998, as stated in his original application.
I put to the Applicant that he had stated in his original application (in answer to question 30 on Part C of the application form) that he had lived at two addresses in Hillbrow from 1992 to 1995 and from 1995 to 1997 respectively. The Applicant said that this was not correct. He said that he had lived at the second of these addresses, 35 Rayner Court, from 1996 to 1997. I put to him that he had just told me that he had moved back to Brakpan in 1996 and had only returned to Hillbrow in September 1997. The Applicant said that the formation of the party (the UDM) had been in September 1997. I put to the Applicant that in his original application he had said (in answer to question 30 on Part C of the application form) that he had lived at an address in Yeoville in 1997. The Applicant said that this was incorrect. He said that he had lived at the Yeoville address after he had come back from training. I asked the Applicant why he had said in his original application that he had lived at the Yeoville address in 1997. The Applicant said that he had not had the chance to explain. I put to him that he had been assisted by his original representative in preparing his application and he agreed.
The Applicant confirmed that he had worked in a factory in Benoni in 1997. He said that he had left this job in December 1997. I referred to his evidence that around the end of July 1998 or the beginning of August 1998 he had had a gun pointed at him in his apartment in Hillbrow. I asked the Applicant if he had reported this incident to the police. He said that he had not. He had reported it to his colleagues in the party. He said that the police would not have believed that this had happened. I asked the Applicant how he could say this if he had not reported it. He said that it had not come up that he should report it.
I referred to the Applicant’s evidence that around three weeks later he had been attacked by three people, severely beaten and left to die in the garage of an ANC youth leader in Tembisa. The Applicant said that this should be three days later, not three weeks. He said that his statutory declaration was incorrect. I asked the Applicant if he had required hospital treatment after this incident. He said that he had gone to his private doctor. I noted that he had said in his statutory declaration that he had gone to his private doctor after he had supposedly been falsely arrested by the police. The Applicant said that he had gone to his private doctor after the earlier incident as well. He said that despite his claim that he had been ‘severely beaten and left to die’ he had in fact only required bandaging and some stitches. He said that his party had advised him not to report this incident to the police. He said that they had still been trying to find out why he had been attacked. I put to him that the motive was self-evident. He said that they had been trying to investigate the matter themselves. He said that they had not trusted the police to investigate it because the police were corrupt. The Applicant said that several of his colleagues had reported such incidents and that nothing had come of this.
I referred to the Applicant’s evidence that in September 1998 he had been framed by the police on a charge of theft and violence and detained for three days. The Applicant said that this had been after he had come back from Tanzania. He said that he had come back on 28 September 1998 and this incident had occurred on 30 September 1998. However he then said that he had mixed this up. He said that the incident in which the gun had been pointed at him had been in July 1998. He had been attacked again in July 1998 and at the end of July or early in August he had been framed by the police. This had been in August, not in September. I asked the Applicant why he had said that it had been in September in his statutory declaration. He said that he had still been confused. He had been severely traumatised. Since he had been at peace he now remembered what had happened.
I asked the Applicant whether he had lodged a complaint about what he said had been his wrongful arrest and torture. The Applicant said that the police had dropped the charges and had released him. I noted that there were bodies in South Africa to which one could complain about misconduct by police officers (US State Department Country Reports on Human Rights Practices for 2000 in relation to South Africa, Section 4, Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights). The Applicant said that he had been in the middle of an election campaign. I asked him what election he was referring to. He initially responded that he was referring to the general election in 1998 but he then corrected this, acknowledging that the election had not been until 1999. He said that one had to start campaigning early.
The Applicant said that the incident when he and three other members of the UDM had been stopped by two police officers at a place called Bonaero Park, between Kempton Park and Benoni, and one of the police officers had been killed, had been at the end of September. The Applicant said that the facts in his statutory declaration were correct; it was just the dates that were wrong. I asked the Applicant how he had managed to leave South Africa, travelling on a passport in his own name, if he had been wanted by the South African authorities in connection with the killing of a police officer. The Applicant said that he had travelled as part of a group of 90 people from an insurance company. I asked the Applicant why he had delayed for almost a year before applying for a protection visa in Australia. The Applicant said that he had been ignorant and scared. I noted that he had remained in Australia illegally for almost nine months after his visa had expired. The Applicant repeated that he had been scared. I noted that he had said in his statutory declaration that he had been helped by the Salvation Army during this time. The Applicant said that this had only been for shelter. He had only stayed there for a week.
I indicated to the Applicant that, given the inconsistencies in his evidence, I had difficulty in accepting that he was telling the truth. Furthermore, even if I accepted that he was telling the truth his claim was that he was wanted by the South African authorities in connection with the killing of a police officer. I explained to the Applicant that it was well established that the enforcement of a criminal law of general application was not, without more, persecution for a Convention reason (see Applicant A, referred to above, per Dawson J at 244-5, approving what was said by Beaumont, Hill and Heerey JJ in the Full Court of the Federal Court in that case, and per McHugh J at 258-9). In order to come within the terms of the Convention I would have to be satisfied that he was being singled out for prosecution for one of the Convention reasons or that he would be treated differently from others charged with the same offence, for one of the Convention reasons (see Z v Minister for Immigration and Multicultural Affairs, unreported, Federal Court, Katz J, 11 December 1998). The Applicant said that he had been attacked by the ANC Youth League in Tembisa in July and they had reported this to the police. The police had arrested him and had kept him in gaol for three days. They had beaten him and had given him electric shocks. The Applicant said that he had recognised one of the police officers responsible when they had been stopped by the police and he had told his colleagues. I indicated to the Applicant that this might be a matter to be raised in his defence but it did not bring his circumstances within the definition of a refugee in the Refugees Convention”
41. In February 2000, the Visa Applicant applied for an interdependency visa on the basis of his relationship with Said. In support of that application he submitted a lengthy statutory declaration dated 27 March 2000, and which appears at Tpg153 to Tpg161, the whole of that statutory declaration is included in these reasons as follows:-
“STATUTORY DECLARATION
I, Patrick Sebastian of 209 Cleveland Street, Redfern in the state of New South Wales solemnly and sincerely declare that:
1.My name is Patrick Sebastian.
2.I am a citizen of South Africa of Zulu ethnicity.
3.I am a Christian by religion.
4.I was born on 25 December 1969 to a poor family in a village called Nondweni, Noutu District, Vryheid region (the town of Durban), in the province of Kwa zulu Natal in South Africa.
5.My parents died when I was 13 years of age, from an attack by the White Wing at Afrikaners. No body took care of me after the burial of my parents and as a result I ran away from Kwa zulu Natal to Johannesburg (JHB).
6.In the majority part of my life I have done politics with the African National Congress (ANC), which is the ruling political party now, as a member. However, as the party was deviating from its vital policies I became frustrated about it. However, as there was no alternative I stayed in the party having friction with its hierarchy. However, when a brave follower of ANC comrade Bantu Holomisa, a young charming man without fear in his life was making arrangements to deflect from the party in June 1997 I joined with him and supported him. Later in September 1997 Bantu Holomisa formed his own political party named United Democratic Movement after deflecting from the ANC. Then I joined that party and worked for it.
7.As I was moving with Bantu Holomisa closely in June 1997 who also had friction with ANC I was under constant threats from the ANC.
8.During this time I met my present partner Said at my house during the last week of June 1997. He had come to South Africa on tour. Said had a friend in Australia who had a brother named Abdul Jhavery in South Africa. That brother was working with me at the time. Abdul moved from Johannesberg to Kimberly. Therefore he could not accommodate Said as he was far from Johannesburg. Then my friend asked me to accommodate Said at my house.
9.When we met we got very friendly and were discussing about various topics such as about his country, music, our lives and many more things.
10.Said liked me a lot as we had similar interests. We both liked cooking and we cooked together. He wanted me to cook South African foods and I asked him whether he could cook Zanzibarian food for me to taste. He was very kind he did so without any hesitation. In the meantime we listened to music, I went out taking him for sight seeing. Sometimes we sat in parks and had long chats. Both of us were tee-toddlers. I also realised he had political problems from his government. Our political ideas matched well.
11.One day when we were sitting in a park Said conveyed that during the time that he lived with me in my house he liked me a lot. He was proposing a serious partner relationship. As I also liked him a lot and appreciated his nice ways and attitudes about life I consented. In fact at the time I was living a miserable life as my girl friend that was pregnant with my children had left me. When she left me she said she was leaving me as I was not getting a good salary and she would not be financially secured with me. I explained to her that with my little education I was doing my best and would support her and the children in the best of my ability. But she was ruthless and did not want to listen to me. She left me in early 1996 depriving me of our relationship and our unborn children
12.Since then I was living a miserable life alone. I told all this to Said and he sympathised with me. He said, as he loved me he would never desert me. He was caring, loving and concerned.
13.That was the beginning of our relationship. Gradually this developed to an intimate relationship. By the end of July our relationship had developed in to a strong connection and during the last week of July we started living together as interdependent partners.
14.There was a female friend of mine whom I treated like a sister named Tina. I came to know her in 1995. When Said came to South Africa she came to visit us. We all got very friendly and during the time I lived with Said I told her about our relationship. We invited her to our place during that time and she visited us very often. She was a cheerful person and became very friendly with Said as well. She was happy for my new life with Said and greeted us.
15.Said had to return to Kenya after one month since his arrival in South Africa, as his brother was there. But due to our relationship he could not leave me that soon. He said he cannot leave me and I also felt that we couldn’t part.
16.Therefore we lived together until 30 October 1997 in my house. My lawyer had made a mistake in my application by stating October 1997 as the start of our relationship. It was the time that Said left me for Kenya. When I said that Said returned to Kenya in October my lawyer has included that day as the day we first had relationship. Therefore I wish to correct that error on the application.
17.When the time came for Said to return to Kenya he asked me whether I could go with him to Kenya. I said I would love to come with him to any country as I loved him but I will not be able to escape from South Africa as my name was listed as an anti government activist who deflected from the ANC.
18.Said was very sad about this and said that he can understand my plight. However he said I should try my best to leave the country, as the government would harm me if I stay in South Africa any more.
19.On the 30 October 1997 we parted each other with sad hearts. When he arrived in Kenya he phoned me from the airport. Since then he called me from Kenya almost every weekend.
20.Since that time I was living in misery, as Said was not there any more. I used to cry when I thought about him. Although we were living apart our relationship was getting stronger day by day. He said he could not stay without me and asked me to come to Kenya as soon as possible.
21.I could not go to Kenya because of my political situation. I was hounded by the ANC and I could not leave the country unnoticed. However, we contacted each other through telephone.
22.He was in Kenya until March 1998 and returned to Australia. I called him often at his home number. He also called me often and discussed about our future. I told him that it was difficult to live without him, as I loved him so much. I also told him that however I would not be able to come to Australia as I would be arrested at the airport and killed by the ANC gangs at any moment.
23.Said was concerned about me. He loved me the same way I loved him. He said that I must try to find a way out of South Africa, as otherwise he had to suffer thinking about me. I liked South Africa, as it was my motherland, which nurtured me, but the politics were dirty and ruthless. However now I had a reason to leave my country more than politics. It was said. Although I did not take any interest to leave the country before and lived in hiding, I thought that I should do it not for the sake of our relationship. I did not mind even though I was killed. I wanted to be reunited with Said.
24.I started looking for people who could arrange a visa to Australia. At the time the ANC was hounding me. It was difficult to leave the country without getting noticed.
25.When I was living a miserable life without Said I had told him that I should go to Said even at the expense of my life as I could not live without him.
26.Time passed by and I was trying my best to leave SA. However it was not successful. I was desperate and feeling miserable. Tina also tried to contact her friends to arrange a visa for me. But it was difficult.
27.One day Tina came to me with very happy news. She said that she was selected as the best worker of the year in her work place and as the reward she got two return air tickets to Australia. According to the conditions she could travel with any partner she liked. Tina said I could go with her and get together with Said. I was extremely happy. I thought she was god sent. I was not worried what would happen to me at the airport as she had influence over an officer there. I decided to leave with her to Australia to Said.
28.I tried to contact Said and inform about this good news but he was not at home. I tried many times without success. However, I could not delay my journey, as Tina was about to leave. She knew people in the airport and I was allowed to pass the immigration counters without being troubled.
29.On 24 October 1998 I left South Africa with Tina and arrived in Australia on the following day. As soon as I arrived in Australia I called Said from the airport but there was no answer. Tina went on her own way as she had only about two weeks to travel around Australia. Although I could not trace Said I told her that I would go to his place and not to worry about me. I did not want to worry her any more as she did a great sacrifice for me by bringing me as her partner when she could have brought one of her family members along with her. Then we greeted each other and parted.
30.Upon my arrival in Sydney I suffered a lot because I knew no body in the city except Said. As I did not know his whereabouts as well I had no way to survive. I became a street beggar for two weeks and from there I was saved by Salvation Army. They gave me food, my one week accommodation at backpackers et cetera. From there I went back to streets. However, I was determined to find Said.
31.After one month in Sydney I met a certain person who was from South Africa and asked him help. He said he will get back to me after 3 days. He later met me after 3 days and gave me $20 and a telephone number of another African brother namely Abdul Hamis. I tried to find Said’s whereabouts through him. This man was more cooperative and tried to find Said. He said he would ask his friends and try to find him. He accommodated me up to three months.
32.Ultimately he came to my room one day and said that he came to know about one Said in Sproule Street, Lakemba. I went with him to this place. This was the beginning of February 1999. The house was closed. We waited outside for a few hours until evening. Eventually Said returned to that house.
33.Said could not bear up his happiness and hugged me at once. I sent away the other friend and thanked him. We both cried. He asked me when I did come. I said it was about 3 months. He felt very sad. He said that he had to move houses immediately as the house he was living in was put on urgent sale. He had tried to contact me but realised that I have left South Africa. He had wondered where I had gone.
34.I told him the life I went through without him in Sydney. I explained him how I begged on the streets to survive. He was extremely sad and promised me that I will never have to face a situation like that ever again. I saw tears in his eyes.
35.Since then I was living with Said to-date.
36.We stayed in 2/201 Sproule Street until May 1999. It was a rented accommodation. As I came as a refugee I did not have any assets with me. But Said allowed me to use everything jointly. We even shared one towel between us. I never felt that I was in someone’s house. Said, said that everything he owned was mine.
37.At the time he was working as a housekeeper at the Swiss Grand hotel and earned about $480 per week. I had no income at all. Even with this small salary he supported me throughout and provided everything for me. We were going out together to places of our friends from both our countries such as dinners, birthday parties and weddings.
38.In these occasions Said introduced me as his partner and we moved as a couple and everyone came to know about us. Many people greeted us on our relationship. Almost everyone said that we were a loving couple.
39.Said was there for everything. He was a marvellous person. When I was happy he enjoyed with me and when I was sad he used to cheer me up and give all the emotional support he could give me.
40.We shared household duties between us. He did cooking and I did the washing, cleaning, laundry and any heavy work in the house. We never forgot to travel around together as Said wanted to show me the beautiful places of Australia. We travelled in Sydney a lot. We saw Taronga Zoo, Opera House, the Rocks, Bondi Beach, Centre Point tower, Aquarium, Darling Harbour etc. etc..
41.In June 1999 we moved to another unit. It was at 86 Kent Street, Millers point. We stayed in that unit until about November 1999. Our life together was getting more and more interesting. He was still supporting me and sharing everything with me. During the end of this period he started to go to school to further his knowledge in English. As he started school he had to stop the job. He started receiving Austudy about $378 fortnightly and it was lower than the salary he was getting before. He sparingly spent money and saved to support me.
42.During this period we felt severe financial pressure and at one stage we had to burrow(sic) from a friend of us named Michael. When we burrowed (sic) this money we signed together for the loan. The loan was for $1,000 and we promised to pay Michael in monthly instalments of $50 per fortnight.
43.This money was paid towards arrears of payments of rent, electricity, telephone etc.
44.By this time we were well known in the African community as a couple and to every function we were invited together and all mail from friends such as cards, letters etc. were sent to both our names.
45.Our friends treated us as a couple and invited to their homes.
46.We lived very happily together, but wanted to socialise very frequently. We went to Discotheques together and danced together. At these Discotheques we met many gay couples and got friendly with them.
47.I had two kids born to my ex-girlfriend Joyce in South Africa and I used to phone them sometimes and talk to them. One day when I called my children Joyce took the phone and said that my child Anna was about to go for an operation to fix up her right leg which was congenitally shorter than the left one. She said to me that she needed some one to go to the hospital to look after the children while she was working. I was very upset to listen to this and I said I couldn’t come, as I would be killed by the ANC if I entered the country.
48.I conveyed my concern to Said and he at once said “I will do it for you”. First I could not believe it. I thought he was just joking. But when I saw the air ticket he bought on the next day to go to South Africa I believed that he meant what he said.
49.On 7 August 1999 he went to South Africa on my behalf to assist my child who was undergoing the operation. Said has cared for Anna since she went to the hospital and returned. Joyce was relieved and happy about the help Said gave and said to me that the operation was successful and Anna could now walk properly. I ever appreciate and love Said for doing everything to save my child from disability.
50.Said returned from South Africa on 9 September 1999. After this trip I realised how caring Said could be. Day by day our relationship grew further. I did everything to make him happy. Our relationship was based on giving not taking. Therefore it nurtured day by day.
51.During the latter part of 1999 Said said that he wished to move to a new place for the New Year. I also thought that it was a good idea. Said and I both loved the city. His college namely AMES English College was also in the city. Therefore I suggested Redfern to be our new place of dwelling. Said agreed to this at once. Therefore in December 1999 we moved to 209 Cleveland Street, Redfern 2016. It was a unit. This unit was taken in our both names. The lease evidences this.
52.Christmas was approaching. In fact my birthday fell on the Christmas day. Said said he was not very much of the partying type. This may be due to the financial hardship we have been going through. However, he said he wants to celebrate my birthday fully this time.
53.We went on Christmas shopping together. Although he got a very small payment such as $378 per fortnight he spent all his savings on our shopping. It was joy to shop with him. However, I told him not to buy expensive things for me, as I could be satisfied with ‘window shopping’. But he was not satisfied with that and bought me an expensive tracksuit. I felt bad as I did not work and had no money with me to buy for Said. But I bought a nice Christmas card and flowers for him with my meagre savings. He did not expect it but was happy.
54.On the Christmas day we did not go anywhere. We enjoyed celebrating the day at home. Said bought a beautiful cake and called a few friends to our place to enjoy. It was more of my birthday than Christmas celebration. When I cut the cake I gave the first piece to Said. Every one was happy for us. They said we were a good couple. We had music, singing and dancing till late. However it was a very modest party.
55.The New Year eve was also joyful and romantic. That day we did not invite any one. That is because we wanted to enjoy together in our relationship. On the dawn of the millennium the first thing we did was to kiss and love each other. It was nice. I have never felt so happy.
56.I am sad that I cannot share household expenses with Said as I am not working. However, my lawyer has applied for work right for me and if I get work right I will earn and spend towards the expenses in our life.
57.We have similar interests and liking’s. Both of us like sports such as track events, soccer and hobbies such as eating, sight-seeing, music, movies. We are also joint members of Club Africa No.1 (African entertainment club). We used to listen to African music, meeting friends, Disco dancing, Culture dancing together. We meet many couples like us. We also went to the Mardi Gras festivals together and enjoyed.
58.Recently I came to know that my ex-girl-friend has a relationship with another man and has abandoned my children with her sister requesting her to pass on the children to me. I was very up set (sic) about the children and when I said this to said he asked me to include their names in my resident application we would look after them together when they arrive here. Therefore it very important to obtain my work right.
59.Since last week of July 1997 to-date we have lived together for more than 2 ½ years now. All separations during this period were temporary. Such separations were due to the unavoidable reason that I could not leave South Africa as I was hunted by the government. Our relationship has always being strong and loving. We have always maintained communications during the periods we had to live apart.
60.I request the Immigration department to allow me to stay with my partner Said for the rest of my life.
42. The Visa Applicant said that he came to Australia in the first place in October 1998 in order to join his partner Said. He had met Said in South Africa in July 1997 and when their relationship commenced. (I refer in this context to his affidavit quoted in the preceding clause). The truth of his statement that he came to Australia to be with his partner Said, is open to doubt because he did not know where Said was. The manner in which he got to Australia and eventually located Said can only be described as amazing, or less kindly as pure fantasy. The circumstances will be related later in this part D.
43. The Visa Applicant said that he was born in Durban in 1969. (The RRT doubted even that claim that Durban was his place of birth). At the age of 13 and having lost both of his parents he made his way to Johannesburg and where he became a parking attendant. I inferred that the term “parking attendant” does not refer to a regular and paid job in a parking garage but rather to a situation common in South Africa and where as one parks, an African appears and offers to look after one’s car to prevent it from being vandalised. There is perhaps occasionally an imputation that it is desirable to accept the offer. The remuneration payable is usually comparatively small. It is possible that the attendant has some claim to a given area in the sense that he is by some means able to prevent rivals from intruding on his own allotted area.
44. The Visa Applicant said that he never attended school at all. At a later period in his life he attended, when he was able to do so some classes run by some voluntary organisation but in the main, so he said, taught himself to read and write.
45. After working as a parking attendant in Sandton (an exclusive suburb in the North of Johannesburg) and also Brakpan, the Visa Applicant, as he put it “joined engineering”. This was explained on the basis that he obtained a job with Jumbo Engineering in Benoni operating a machine which made nuts and bolts. That job lasted for one and a half to two years; he lost the position because he was not sufficiently competent at it. It should be noted that it was only with some effort that dates were obtained in respect of relevant events. The Visa Applicant had great difficulty as to when they occurred resulting in considerable variances, especially when compared with some of the documentary evidence to which I have referred previously in these reasons.
46. Having lost his job at Jumbo Engineering, the Visa Applicant began working for the Catholic Church counselling street children; (given that he was hardly literate and had no relevant training this allegation is particularly difficult to believe).
47. Having left Jumbo Engineering he went for a time to live with a friend in Brakpan; he also said that at some time (but it was not possible to discover when) he became a recruiter for the ANC. (The ANC is so overwhelmingly the party of choice in South Africa that it is hard to understand why it would need recruiters). In July 1997 General Bantu Holomisa defected to form his own party and the Visa Applicant joined him to recruit for that new party, UDM. The UDM has he said about 1,300 members. In his affidavit in support of his interdependency visa, the Visa Applicant described Bantu Holomisa as young and “without fear”. He was in fact a brigadier who was appointed by the white government as president of the Transkei. The Visa Applicant’s description of Bantu Holomisa is best described as fanciful.
48. The Visa Applicant said that it was at this time that he attended the classes during which he learnt the basics of reading and writing but for the most part according to his evidence, he taught himself.
49. The Visa Applicant met Joyce in either 1994 or 1995. At that time she was not working but he was earning “a lot of money in engineering”. He met her in Hillbrow; he said that she came to live with him in Hillbrow which as I said previously is a suburb in Johannesburg. It will be remembered that Jumbo Engineering is in Benoni some distance from Johannesburg. He said that he commuted on a daily basis to and from Benoni.
50. After he lost his job at Jumbo Engineering things went badly with Joyce. He moved to Brakpan to stay with a friend. He parted from Joyce even before the twins were born. (At his interview with the Embassy but not before the Tribunal he said that their relationship ended even before he knew Joyce was pregnant; see (T32, p428) Joyce had, so he said, found another man who was better educated and had a good job and was able to support her. He was unable to provide any support for the twins and in consequence was not allowed access to them and in fact had little or no contact with Joyce.
51. The Visa Applicant met Said in July 1997 when Said was on a visit to South Africa. That visit lasted from July to October 1997, and during that time the Visa Applicant lived with Said in Hillbrow, Johannesburg.
52. Tina gave the Visa Applicant a ticket to Australia having won two tickets as a prize. She also according to the Visa Applicant was prepared to share her money with him. That evidence was later amended so as to allege that she furnished him only with “show money” to enable him to have a stamp in his passport indicating sufficient means. The Visa Applicant then arrived in Australia totally destitute and with no idea of where Said was. He said that he begged and was helped by the Red Cross and also the Catholic Church (later amended so as to refer to the Salvation Army). The Visa Applicant said that from the outset he came to Australia in order to stay here permanently.
53. The Visa Applicant then met Abdul in the street. Because Abdul is also black, he asked Abdul for help. He said that he then moved into Abdul’s home in Annandale. Abdul then searched for Said and located him in Lakemba some five months later and he moved in with Said on the day on which his whereabouts were located.
54. By February 1999 the Visa Applicant’s visitor’s visa had expired and he was illegally in Australia. He could not obtain legal assistance because he had no money. Nor according to his evidence did Said have the necessary means; (Said had spent the period July to October 1997 on holiday in South Africa and had returned to Australia via Kenya, all of which would tend to indicate that he was a man of some means).
55. The evidence as to the machinations which lead to an application for both an interdependency visa and also a refugee visa were lengthy and in some respects contradictory. Mr McDonell was Said’s lawyer. He was approached prior to October 1999 for assistance but refused to act without money. However McDonell had a partner or an assistant called Champa Budehaipala (who is referred to as ‘Champa’). I was informed during the hearing that McDonell has since changed his name to Jefferson.
56. Champa explained that an interdependency visa could not be applied for in Australia because the Visa Applicant was then illegally in Australia. The solution according to Champa was to apply for a protection visa; once a protection visa had been applied for and so long as it had not been refused, the Visa Applicant would then be entitled to apply for an interdependency visa. Accordingly the Visa Applicant and Champa together concocted the protection visa application. Although the Visa Applicant said that the handwriting was his, he later altered that evidence so as to say that the handwriting was that of Champa. The rather flowery language of the Applicant’s affidavit supporting the interdependency application was probably that of Champa. It is to be noted that the protection visa application was made some considerable time after the Visa Applicant first arrived in Australia. The Visa Applicant said that Champa asked him not to tell McDonell of the methods adopted by them jointly.
57. The Visa Applicant eventually obtained the right to work in Australia through a bridging visa granted in May 2000. Through Said the Visa Applicant was able to obtain work as a cleaner. As such he cleaned the police stations in Annandale and Glebe. He had to stop working in January 2001 when his right to work ceased. He admitted that he had worked (illegally) and in breach of section 235 of the Act for a short period after his right to work ended.
58. There was much in the evidence of the Visa Applicant which was improbable. The whole Tina arrangement was improbable; this is equally so in relation to much of the evidence regarding Said. But this evidence improbable as it is, is not as improbable as the evidence as regards money. The Visa Applicant arrived in Australia destitute; Tina did not in fact make any money available to him. He worked for at most eight months. During that period he earned $600.00 per week before tax; (the Applicant said that he earned $400.00 per week before tax). During that period he was able, according to his evidence, to send money to Joyce for his daughters, provide Said with show money of $2,000.00 in respect of Said’s trip to Germany and in addition buy a Toyota motor car for $4,500.00. After he moved in with the Applicant towards the end of 2001, he commuted to and from work in Sydney, and from Newcastle and so that motor running expenses must have been high. After Said left for Germany in July 2001 and failed to return the show money provided to him, the Visa Applicant had to bear the cost of their joint flat. If one costs in the fact that tax would have been deducted at source from his earnings, the equation is impossible. The Applicant described the Visa Applicant as good with money. There are a number of possible explanations, all of which necessarily have the effect that his evidence before the Tribunal cannot have been truthful.
59. The evidence as regards Said is equally difficult to comprehend. When one of the twin girls in South Africa needed an operation Said had flown to South Africa to be with her. All of the evidence tends to indicate that Said had financial resources. If this is so, the evidence of the Visa Applicant that he provided Said with show money of $2,000.00 (not returned notwithstanding a promise to do so) to go to Germany cannot possibly be true.
60. The evidence from the time of Said’s departure does not improve. Said went to Germany in the middle of July 2001 and but for two brief communications was never heard from again. At an interview in Pretoria the Visa Applicant said that he knew that the Said relationship was over by August 2001. Before me the evidence was that the relationship between the Visa Applicant and the Applicant became physical in September 2001. By that time at the very latest, the relationship with Said was well and truly over, and indeed it was probably over before then.
61. But in September 2001 the Visa Applicant took a step which was in my view significant in the extreme. He informed the Respondent that the twin girls should be removed from his interdependency application but he did not withdraw that application and on the contrary it was left on foot. It was withdrawn only in December 2001 shortly before his marriage to the Applicant. The clear cynicism displayed is breathtaking. An application based on a homosexual relationship was continued during a heterosexual relationship and was withdrawn only at or about the time of the marriage to the Applicant in respect of the latter relationship. It is regrettable that one possible conclusion will be hurtful to the Applicant and her family and friends. That conclusion is that the Visa Applicant was keeping all of his options open. If the interdependency application was kept on foot to preserve a right to continue working, the Visa Applicant’s actions in this regard were only marginally less reprehensible
62. The Visa Applicant’s evidence as regards Joyce at times achieved even more fantastic heights. Joyce refused to allow him access to his daughters because he provided no support. Yet they were included in the interdependency application. The implication is that Joyce would have allowed them to be taken away from her. (The Visa Applicant said that this was so because they would have a better future in Australia). He said also that he sent money ($100.00 per month) for the girls while in Australia. Yet Joyce refused to accept Christmas presents for them offered by the Applicant. The Visa Applicant had said that Joyce abandoned the twin girls (T15, p160); he then altered that statement in order to aver that she threatened to abandon them because her new partner was objecting to them; (this is the new partner who had been supporting the twins for years). If he sent Joyce $100.00 per month for the twins the financial evidence to which I referred earlier becomes even less deserving of credibility.
63. Said went to South Africa for Anna’s leg operation in 1999. The money was, according to the Visa Applicant, provided by friends from whom they borrowed and subsequently repaid. As to why Said needed to borrow is not clear. Again if this is so the financial evidence becomes even more unlikely. The Visa Applicant is according to the Applicant financially responsible in contrast with the Applicant herself. She has been supporting him so she said in part out of her social security allowance although in periodical amounts which have steadily decreased. The Visa Applicant said that his support from the Applicant ceased some time ago.
64.
The Visa Applicant says that he is unemployed. He was asked why he does not go back into parking or political recruitment. He said that he does not want to do either. “Parking” jobs are available so he said only to younger men although this does not accord with my own experience; parking attendants are often men who are older. It may be that having severed his ties with the ANC, he cannot restore them.
It is significant that he managed to make a living of sorts before coming to Australia but is unable to do so since returning to South Africa.
65. The Visa Applicant’s evidence was often untruthful. His evidence varied even during the hearing and from one day to the next. Mr Jackson did not re-examine after the cross‑examination of the Visa Applicant had ended. At the end of the day there is only one viable conclusion and that is that the Visa Applicant is an opportunist and an adventurer. That he is likeable cannot be doubted; even over a long-distance telephone his likeability communicated itself to me. This may explain the evidence of the character witnesses referred to in Part F.
PART E – THE EVIDENCE OF DR MORRISSEY
66. Dr Morrissey is a medical practitioner who has treated Samara for most of her short life. His evidence which I accept is that she will need specialist medical help for years to come. With some diffidence, because he is after all a general practitioner and not a psychiatrist, Dr Morrissey spoke of the Applicant’s depression and anxiety and also Benjamin’s anger.
PART F – THE CHARACTER WITNESSES
67. The term “character witnesses” encompasses all of the witnesses excepting Dr Morrissey, the Visa Applicant, the Applicant and Benjamin. With only two exceptions and being Kandyce Lee and Chris Alger, the evidence took much the same form. Each has given a statement which attests to the likeability of the Visa Applicant and which plays down or ignores the conduct which gave rise to this application. Without exception each of them, when it was put to him or her that the Visa Applicant’s conduct was such that he had exposed himself (under section 234 of the Act) to a heavy prison sentence replied without hesitation that this made no difference whatever to that witness’s high opinion of him. Some of the statements to which I have referred were couched in terms which would suggest that the Respondent was behaving unreasonably and unfairly in relation to the Visa Applicant. Mr Wolfe when asked this question by Mr Cramer replied by asking Mr Cramer in hostile terms what crimes he, Mr Cramer had committed. Some of the witnesses spoke of the Visa Applicant’s “mistake” as if his behaviour was somehow a temporary error of a minor nature only.
68. Kandyce Lee did although her statement contained a distorted view of South Africa, at least think about the question before she answered that her view as to the Visa Applicant’s character remained the same.
69. Mr Alger whose evidence was impressive, also gave the matter some thought. His evidence was valuable for another reason and that is that he is a former lover of Said whom he described as withdrawn and cold.
70. Mrs Piefke said that she and her husband could give the Applicant neither financial help, because they have their own financial problems (necessitating the sale of the house which had been let to the Applicant) nor caring assistance because of her commitment to her aging and ill mother and mother-in-law. Mr Piefke said that he had lent money to the Visa Applicant at times but that it had been repaid.
71. The only value of the character evidence (which was otherwise in broad terms unhelpful) is that all of the witnesses in question spoke of the Visa Applicant with great warmth. Mr Piefke spoke of the Visa Applicant having helped him paint his home. Those of the witnesses who have children spoke in particular of his warmth to their children and the affection which he inspired. Having merely heard him over the telephone his likeability nevertheless came through to me. Mr Cramer said in closing submissions and not at all unfairly, that a confidence trickster without the ability to inspire liking is unlikely to succeed.
PART G – THE CHARACTER TEST AND DIRECTION 21
72. Mr Jackson conceded correctly in my view that the Visa Applicant could not pass the character test. His callous disregard over years, as described in the Respondent’s Statement of Facts and Contentions, for Australia’s laws must have this effect. I do not make any finding as regards Champa because he did not give evidence before me. Nevertheless the conduct, which lead to the filing of a false refugee application in order to facilitate the interdependency application, is such that the matter should be investigated by the Migration Agents Registration Authority; the Respondent is asked to send a copy of this decision to that body.
73. As I have said, Mr Jackson correctly conceded that the Applicant does not pass the character test. That being so, it is necessary for me to consider the discretion contained in part 2 of Direction 21. In this Part G, references to numbered clauses should be construed as references to numbered clauses in Direction 21, the full title of which is “Direction No 21 Direction – Visa Refusal and Cancellation under Section 501 – No 21”.
74. The primary considerations as set out in clause 2.3 are:-
“In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(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 or other close relationship between a child or children.”
75. Clause 2.3 should be read in conjunction with clause 2.5 which provides:-
“The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen 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 visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
76. In this case the deterrence factor is very real and must be construed against the Visa Applicant. To recommend the grant of a visa in these circumstances would send entirely the wrong message. I agree with the decisions cited by the Respondent in this context in his Statement of Facts and Contentions and as set out in clause 5 above.
77. I would not rate the risk of recidivism as unacceptably high although it cannot be discounted. The Visa Applicant has displayed a willingness to ignore laws which do not suit him over years; that disregard of laws extended to the immigration authorities of this country and also those of Germany. I am concerned also that his evidence before me was untruthful and that despite repeated warnings that untruthful evidence before me would be regarded in a very serious light. There were times when I had the distinct impression that he was making up his evidence as he went along. His evidence that Joyce had abandoned or was threatening to abandon the twins was particularly reprehensible. Joyce after all is the woman who has cared for his daughters with virtually no support from him over many years. His behaviour as regards the interdependency application and its withdrawal only in December 2001 is equally reprehensible. The Visa Applicant left that application on foot despite the cessation of his relationship with Said and despite the formation of a relationship with the Applicant leading to his moving in with her, becoming engaged to her and marrying her. That behaviour must be regarded as evidence of the fact that the Visa Applicant is willing to transgress the law if and whenever it suits him to do so.
78. The interests of Samara are primary. In the ordinary way her interests would best be served by her having both parents with her. However she has never met the Visa Applicant, and moreover, the Visa Applicant, despite what the Applicant and Benjamin said, is neither a good provider nor a good financial manager. I accept that while in Australia he did work when he could. I accept also that for him to work in South Africa would be difficult. His lack of any kind of training or qualifications will always have the effect that his ability to provide will be very limited indeed. The manner in which he abdicated responsibility towards his successor in Joyce’s affections and thus responsibility for his twins speaks volumes. And the fact that he was deprived of access in consequence does not appear to have weighed heavily with him. He included the twins in his interdependency application but then withdrew their names from that application, but not the application itself which should have occurred far earlier than it did. The evidence before me would suggest that the Visa Applicant is an opportunist. Said, Tina and Abdul appear to have succumbed to his charms. The same applies of course to Joyce and the Applicant and the Applicant’s friends and relatives. There must be doubt as to the Visa Applicant’s ability to sustain a relationship. I make these comments with some regret; I am only too aware of the fact that he grew up as a black man in a white dominated South Africa and that he appears to have been deprived in consequence of educational opportunities.
79. As to the expectations of the Australian community, Mr Jackson submitted that the character witnesses constitute that community, and being ordinary people who know the Visa Applicant. They are not; they gave the evidence to which I have referred out of loyalty to and regard for the Applicant and refused for the most part even to consider the fact that the Visa Applicant might have behaved badly. Ms Lee and Mr Alger were notable exceptions in that they were at least prepared to open their minds, even though Ms Lee’s evidence could not be accepted for other reasons. The Applicant’s parents of course have an understandably strong desire to see the Applicant settled and happy. She is some seven years older than the Visa Applicant; however the Visa Applicant appears to have made their daughter happy and it is not surprising that they should speak well of him. On balance, and while opinion might be divided, the Australian community as a whole with knowledge of all the facts would expect that in this case a visa would be refused.
80. The offences were undeniably serious within clause 2.6(c) whatever the Applicant’s friends and relatives may think. The penalties for breaches of section 234 of the Act (and there were many) must have the effect that this is so. I regard with concern the fact that so much of the Applicant’s evidence before me was so remarkably untruthful.
81. As regards clause 2.17 I accept that the refusal of a visa will cause hardship to the Applicant. To a limited extent it will cause hardship to Benjamin, although as I have noted Benjamin is over 18 and had the benefit of the Visa Applicant’s presence for less than a year. I have previously dealt with the position of Samara. As she grows older, she will be entitled to visit her father in South Africa. For that matter, the Applicant will, if her financial position should improve, have the right to do so.
82. This is in many ways a heartbreaking case. Whatever his motives, the Visa Applicant does appear to have behaved in a loving fashion towards the Applicant, although I have some reservations as to his taking money from her after his return to South Africa and when, to his knowledge, she is so little able to furnish it.
83. This is not a case in respect of which it would be proper to exercise the discretion in favour of the Visa Applicant, and accordingly the decision under review is affirmed.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: A. Krilis Associate
Date/s of Hearing 20, 21 and 22 April 2004
Date of Decision 19 May 2004
Counsel for the Applicant Mr C Jackson
Solicitors for the Applicant John de Mestre & Co
Solicitor for the Respondent Mr B Cramer of Blake Dawson Waldron
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