Silva and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 27
•14 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 27
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/2028
GENERAL ADMINISTRATIVE DIVISION ) Re DORALICE DE OLIVEIRA SILVA Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date 14 January 2005
Place Sydney
Decision The decision under review is affirmed.
[SGN] Deputy President J Block
CATCHWORDS
Application for spouse a visa – concession that character test failed - consideration of discretion contained in Direction 21 – the decision under review is affirmed.
Migration Act 1958 – sections 234, 235, 501
Re Ynson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 844
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Beale and Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897
REASONS FOR DECISION
14 January 2005 Deputy President J Block
Part A: Background and Introduction
1. The decision under review is the refusal by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) of an application for a spouse visa dated 27 May 2002 (Tp21) made by Rodrigo Simoes Silva (“the Visa Applicant”); that application was sponsored by his wife Doralice De Oliveira Silva (“the Applicant”).
2. Mr C Levingston of Christopher Levingston and Associates, solicitors appeared for the Applicant and Ms D Watson of the Australian Government Solicitor appeared for the Respondent.
3. The Tribunal had before it the (lengthy) T-Documents running to 331 pages lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
a) Exhibit A1: Statutory Declaration of Rodrigo Simoes Silva dated 6 July 2004
b) Exhibit A2: Psychologist’s Report by Dr Christopher Lennings concerning Mrs Doralice De Oliveira Silva dated 15 May 2004
c) Exhibit A3: Psychologist’s Report by Dr Christopher Lennings concerning Mrs Socorro Simoes Wilkinson dated 4 August 2004
d) Exhibit A4: Statutory Declaration of Socorro Simoes Wilkinson dated 21 May 2004 and attached letter by Socorro Simoes Wilkinson dated 12 May 2004
e) Exhibit A5: Statutory Declaration of Socorro Simoes Wilkinson dated 23 July 2004
f) Exhibit A6: Statutory Declaration of Doralice De Oliveira Silva dated 30 April 2004
g) Exhibit A7: Statutory Declaration of Adriana Silva McCaig dated 2 August 2004
h) Exhibit R1: Copies of various visas granted to Rodrigo Simoes Silva
i) Exhibit R2: Chronology of relevant events prepared by Christopher Levingston and Associates
j) Exhibit R3: Summary of visas applied for by Alessandra Silva
k) Exhibit R4: Summary of visas applied for by Rodrigo Simoes Silva
l) Exhibit R5: Application for grant of resident status by Socorro Simoes Silva (as she then was) dated 20 April 1990
4. This hearing took place over three days and being 24, 25 and 26 November 2004 and which are referred to as the “first”, “second” and “third” hearing days respectively. The Tribunal heard oral evidence by the Visa Applicant through a conference telephone link to Brazil and with the aid of a Portuguese interpreter. The Tribunal also heard oral evidence by Dr C Lennings a psychologist, through a conference telephone. In addition oral evidence was given by the Applicant, Mrs Doralice De Oliveira Silva, the Visa Applicant’s sister, Adriana Silva McCaig (“Adriana”), and by the Visa Applicant’s, mother Soccoro Simoes Wilkinson (“the mother”). The mother’s evidence was given with the assistance of a Portuguese-language interpreter.
5. At the outset of the hearing Mr Levingston made (and in my view correctly) two important concessions. First, he conceded that there was an irresistible inference that the Visa Applicant came to Australia originally in 1995 in order to stay in Australia. (Adriana when she came to give evidence denied that that inference was correct). Secondly, Mr Levingston conceded that the Visa Applicant could not pass the character test. Those concessions were contrary to the evidence given by the Visa Applicant and Adriana.
6. Mr Levingston when he presented his witnesses usually, but not always, adopted the procedure of tendering their witness statements and after a few questions sitting down and so as to allow for cross-examination. In the case of the Visa Applicant, whose evidence took up the best part of two days, and also Dr Lennings, he asked questions of a general nature. It is in these circumstances that it is desirable to include the text, or some of the text, of what, in respect of some of the witnesses was, in fact, their evidence-in-chief.
7. The Respondent furnished a helpful Statement of Facts and Contentions dated 6 August 2004; I include in respect of that Statement of Facts and Contentions its content under the heading “Facts” and contained in clauses 1-6 inclusive (and thus omitting that part which related to a contention no longer pursued as to the genuineness of the marriage) as follows:
“1. The applicant is an Australian citizen of Brazilian ethnicity who was born on 14 July 1969. She became an Australian citizen on 30 January 2001 (T2, page 119). She arrived in Australia from Brazil as the holder of a tourist visa on 24 January 1995. She married Alexander Amaral Cerquiera in Australia on 18 November 1995 and applied for permanent residence on 6 December 1995 on the basis of this marriage. She was granted a bridging visa with a “no work” condition from then. This application was ultimately granted on 6 February 1998 (pages 178-179). Her divorce became absolute on 23 March 2001 (T7, page 194) The relationship is stated by the applicant to have ended on 12 June 1998 (T2, page 109).
2. Rodrigo Simoes Silva (the visa applicant) is a Brazilian citizen who was born on 6 November 1973. He arrived in Australia as the holder of a tourist visa, in the company of his sister, Alessandra Silva, on 11 April 1995.
3. On 4 October1995, the visa applicant applied for a permanent residence (Child Family class 802) visa. His sister applied for the same type of visa on 9 February 1996. On the basis of this application, the applicant was granted a bridging visa entitling him to remain in Australia with permission to work. This application was finally determined on 13 March 1997. The applicant was then granted a number of bridging visas allowing him to remain in Australia, but subject to a "no work" condition, until 30 April 1998. From that time he stayed in Australia, and worked, unlawfully.
4. The applicant and visa applicant claim to have first met in 1995 as "friends and work mates" (T2, page 123). On 8 August 2001 the applicant and visa applicant were married at a civil ceremony. (T2, page 121)
5. The visa applicant departed Australia on 15 September 2001. On 20 September 2001, he applied for a spouse visa at the Australian Embassy in Brasilia. (T2) The application was supported by identity documents, their marriage certificate and statutory declarations from the applicant, the two witnesses on their marriage certificate, J Moreira (pages 125-126) and M Nogueira (pages 129-130) and the visa applicant’s mother, Soccoro Samoes Silva (page134). The documents included the visa applicant’s 1999-2000 tax return, in which he claimed and received a spouse rebate, apparently in respect of Maria Teresa Albuqerque (pages148-155) and statements which appear to show that the visa applicant and applicant have access to the same credit card account (pages 156-157).
6. At an interview with officers of the respondent stationed in Brasila on 1 May 2002, (T5) the visa applicant stated that:
he began working as a kitchen hand on a cash in hand basis for three months from April 1995 (page181.1)
he later commenced working as a cleaner with the applicant which had been arranged by his mother (page 181.3)
He did not declare his employment details when he applied for permanent residence in Australia (page 181..4)
he worked continuously during his stay in Australia and started a business with his mother while not having permission to work in Australia (page 181.5)
He first met the review applicant when he went to enrol at a course at the local primary school, and then again three to four months later when they started to work together. When the review applicant left the job they continued to see each other at "gatherings". She was with her husband and he was with his "girl friend" (page 181.6-8)
Sometime in 1999 he met up with the review applicant and found out she had separated from her husband and they dated for about three months as "boyfriend/girlfriend", which ended in April 1999 (page 182.1-3).
After that he had a relationship with a Portuguese national, Maria Teresa Albuqerque until about September or October of 1999, when he began dating the review applicant again.
His relationship with the review applicant continued while he was living at his mother's, where he had subleased a cafe and was working long hours until January 2001.(page 182.6)
He gave various dates as to their decision to marry (January, March and June 2001).The review applicant's sister was unable to attend the wedding because they had decided to marry at the last minute. (page 182.7)
The wedding reception was held at his cafe, they spent their first night in a friend's apartment on the floor above his mother's flat and resided there together until he departed Australia.
The applicant was unable to provide any documentary evidence of him co-habiting with the applicant at his mother's flat, or of any joint financial commitments between himself and the applicant. He could not explain why the applicant had her mail sent to a different address. (page 183)
He claimed a spouse rebate for Maria Theresa on his 1999-2000 because of a mistake by his tax agent. He could not explain how the agent obtained her personal details (page 184).”
8. The Applicant in her Statement of Facts and Contentions dated 18 March 2004 and under the head of “Facts” admitted generally the facts as disclosed in the decision record for refusal under section 501 of the Migration Act 1958 (“the Act”), they include admissions that the Visa Applicant overstayed his visa from the period of 1 May 1998 to 14 September 2001 and that the Visa Applicant worked without permission.
9. Mr Levingston was kind enough to furnish the Tribunal with a helpful chronology of relevant events; that chronology was later tendered by the Respondent as Exhibit R2, and reads (omitting the part which relates to the marriage genuineness issue) as follows:
“Chronology
11 April 1995 Visa applicant, Mr Rodrigo Simoes Silva (herein referred to as “Rodrigo”) first arrived in Australia as the holder of a 6 month visitor visa which was valid until 11 October 1995.
April/May 1995 Rodrigo first met his future wife and Australian sponsor, Mrs Doralice De Oliveira Silva (herein referred to as “Doralice”). Mrs Silva is the review applicant in the current AAT matter.
Approx 4 October 1995 Rodrigo lodged an application for a Child – Family (Residence) Subclass 802 visa application.
13 March 1997 Rodrigo’s subclass 802 visa application was refused. The applicants’ associated bridging visa ceased 28 days later (i.e. 10 April 1997).
8 December 1997 The applicant is purported to have received a letter from the DIMIA informing him of the refusal of the above visa application (Folio 105 of “T” documents).
13 January 1998 The applicant sought a review of the above decision with the Immigration Review Tribunal (IRT) however on 20 February 1998 the applicant received a letter from the IRT advising him that his application was out of time. (Folio 105 of the “T” documents).
Approx 10 April 1997
– 30 April 1998 Rodrigo was granted a number of BVE visas permitting him to remain in Australia until 30 April 1998.
1 May 1998 – 14 September 2001 During this period of time Rodrigo remained in Australia unlawfully. He was also working whilst unlawful.
June 1998Doralice became separated from her first husband to whom she was married on 18 November 1995. The dissolution of this marriage took place on 23 March 2001 (Folio 194 of the “T” documents).
April 1999Doralice and Rodrigo commenced a “boyfriend/girlfriend” relationship. This relationship ended a few months later.
October-December 1999 Doralice and Rodrigo recommenced a serious elationship.
June 2001 Rodrigo proposed marriage to Doralice.
28 July 2001 Rodrigo and Doralice were married. Please refer to enclosed Marriage Certificate at Folio 121 of the “T” documents.
15 September 2001 Rodrigo voluntarily departed Australia in order to return to Brazil and apply for an offshore subclass 309 Spouse (Provisional) visa.
20 September 2001 Rodrigo lodged an application for a Subclass 309 Spouse (provisional) visa with the Australian Embassy – Brasilia (DIMIA File Ref: F2001/161875). Doralice was the Australian sponsor in the aforementioned application.
1 May 2002Rodrigo attended a DIMIA interview with his case officer, Ms Christina Santos Senior Migration Officer DIMIA – Brasilia. At the conclusion of the interview the visa applicant was advised that the DIMIA delegate was not satisfied applicant and sponsor were in a genuine and continuing relationship as defined in Regulation 1.15A of the Migration Regulations 1994.
10. I include also and in this Part A, a part of the interview report in respect of the interview (“the interview”) of the Visa Applicant in Brazil on 1 May 2002 (Tp180-Tp184); that interview report (omitting its content in relation to the genuineness of the marriage) reads as follows:
“I interviewed the applicant today in relation to his application to migrant to Australia as the spouse of an Australian citizen or permanent resident. Also present was John Luppi, LE Brasilia.
Mr Silva stated that he first traveled to Australia in 1995 to visit his mother. He stated that at the time his mother was experiencing some problems in her marital relationship and that in turn was causing her psychological problems.
Mr Silva stated that during is mother’s stay in Brazil her medical condition improved. However, the mother’s husband conacted her regularly and eventually convinced her, as she had traveled to Brazil “get away” from him, to return to Australia and to him.
Mr Silva stated tat shortly after his mother returned to Australia her problems with her husband began again. As a consequence she developed psychological problems again. It was as a consequence of these problems that he decided to travel to Australia to visit his mother. The family believed that this would allow him to provide her with assistance she needed to separate from her spouse permanently.
Mr Silva stated that when he had completed his application for a tourist visa he had been truthful in that he stated an intention to visit his mother. However, he acknowledged that he did not disclose his mother’s medical condition or the problems she was experiencing with her spouse. When asked why he had not provided this information he stated that he did not think he woulge visa if he has provided all the information.
Shortly after arriving in Australia and while the holder of a tourist visa, Mr Silva went to a local public school close to his mother’s house to enrol in classes. It was at this time that he claimed to have met his spouse for the first time.
At interview Mr Silva acknowledged that he was aware of the conditions of his tourist visa and that he was not permitted to undertake formal studies. Despite acknowledging that he was aware of the conditions attached to his visa at the time. Mr Silva was not concerned that he had breached those same conditions, simply explaining “I had to learn English…”.
Despite having attending the school to enrol in classes, Mr Silva stated that he never actually attend any formal classes. Instead he found a job, as a kitchen hand, which paid in cash in hand and worked in this position from April until May 1995.
Again Mr Silva acknowledged that he aware that he was breaching visa condition but was not concerned by this breach of the law. Instead he stated that he had to work as he had to support himself. Mr Silva stated that it was unreasonable to expect his mother to support his tourist stay in Australia. After working as a kitchen hand for three months he was sacked due to limited English.
At this time, Mr Silva’s mother attended a community church and ran into Doralice again. His mother explained Mr Silva’s lack of employment to Doralice at the time and she arranged for him to commence working as a cleaner with her. When he commenced working with Doralice he was still the holder of a tourist visa and was aware that he was working in breach of conditions.
Mr Silva stated that he worked continuously in Australia through out his stay there. He stated that he was aware that he did not have permission to work after his application for permanent residence had been refused. He also acknowledged that he was aware that he was not able to work whilce the holder of a bridging E visa and acknowledged having signed various bridging E visa acknowledgement of conditions forms. Nevertheless he continued to work in breach of his visa conditions in order to support himself. It was during this time that he commenced to run his own business with his mother.
11. This Part A can usefully include a number of matters of a general nature if only because it will in my view assist in the understanding of what was, at times convoluted and inconsistent evidence. I commence by noting that the Visa Applicant is the youngest of six siblings who are:
(a) Valeria, aged 38, divorced architect employed by IBM in Brazil.
(b) Angela, 37, married kindergarten teacher, lives in Texas with her husband (who is an American citizen) and their two children.
(c) Adriana, 35, married bank employee (and whose witness statement is Exhibit A7). Adriana lives in Australia and is an Australian citizen who is employed in the home loan servicing department of the Commonwealth Bank of Australia. She is currently studying history at Macquarie University.
(d) Elbert, 33, restaurant manager in Boston, Massachusetts.
(e) Alessandra, 32, accountant employed by the Rural Bank in Brazil.
(f) Rodrigo, 31, (the Visa Applicant) who is currently in Brazil.
12. Although the Visa Applicant called for a Portuguese interpreter and occasionally used his services, his English is quite remarkably good. It is colloquial, nearly unaccented and fluent. The fact that he was better in English than the interpreter led to a number of arguments between them and also to complaints by the Visa Applicant as to some translations. As to whether the Visa Applicant became so remarkably proficient in English only after coming to Australia, or by contrast whether he was reasonably proficient before he came to Australia, is not easy to discern, although the latter proposition is more likely.
13. The family as a whole is distinctly middle class and educated; Adriana when it was put to her that the Visa Applicant should be able to obtain employment in Brazil because of his good English, answered to the effect that this is very far from an isolated distinction in that large numbers of the population are now fluent in English.
The Visa Applicant’s evidence was noteworthy not only because of his fluency in English, but also because of the fact that he so often answered questions in a manner which bore little relevance to those questions, and so often made, or at least sought to make, speeches. In addition he sometime answered with a question of his own. Having kept notes throughout the hearing I intend to quote from those notes which are, if not exactly in accordance with what the transcript will show, nearly so.
14. The mother came to Australia originally in 1988. She came as a tourist and overstayed her tourist visa. She then, but more than a year later, lodged an application for residence in Australia on humanitarian grounds which (although she denied this in her oral evidence) included a number of her children. Her grounds included the fact that she was afraid of her husband (the father of her six children) who was violent towards her. In fact her own evidence was that she remained afraid of him and is still afraid of him and notwithstanding evidence by her children that he has long since ceased to be part of their lives, living as he does in another part of Brazil, and having taken up with another woman, and by whom he has had further children.
15. It is important to remember that the mother is a qualified dentist who practiced as such before she came to Australia. There was brief evidence (but not by her) that she was a teacher before she became a dentist. After coming to Australia she made, as I have said, a humanitarian application on her own behalf and on behalf of some of her children, but that application was made more than a year after her arrival. When that application was refused, she unsuccessfully sought its review by the Immigration Review Panel. The mother worked illegally, often as a cleaner, prior to the commencement of a de facto relationship between her and Lindsay Dantier, referred to in the hearing (and in these reasons) as “Lindsay”. That relationship resulted in a return to Brazil in or about 1992 to enable the mother to lodge an application for a visa founded on that relationship and which was granted. However, Lindsay too was violent and abusive towards her; in consequence she returned to Brazil for an extended period in or about 1993 but then came back to Australia in or about 1994, at the request of Lindsay, in order to make a further attempt to live with him. That attempt failed. She is now married to Ronald Wilkinson, who although he did not give evidence before the Tribunal is apparently a concerned and caring husband. When the mother came to Australia in 1988 two of her children were very young; the Visa Applicant was 14 and Alessandra was 15. They were apparently farmed out (separately) to relatives and from whom they received care and financial support. The Visa Applicant was thus only 14, when he was effectively abandoned by his mother. His evidence was that he did not feel abandoned and he remained devoted to his mother in “my heart” and notwithstanding the fact that it would be years before he saw her again. The mother was variously described as selfish, self-absorbed and self-centred; there were also references to her as a bad mother. That the mother is not psychologically well would appear to be clear; however, the extent of her incapacity is not clear. She suffers from panic attacks, sometimes described as anxiety attacks, but as I have indicated their degree of severity and also the frequency with which they occur is unclear. The only medical evidence was that of Dr Lennings, a psychologist, who furnished a report in respect of the mother and also a report in respect of the Applicant, Exhibits A3 and A2 respectively. The report of Dr Lennings in respect of the mother is particularly relevant but it must be noted that he wrote that report after seeing the mother for about two hours only and that moreover he relied on statements by members of the family. That she is difficult can not be doubted; that she is not well psychologically can not be doubted but it is not possible on the evidence before me to be more precise. Notwithstanding her illness she has undoubtedly managed in Australia through one failed and one apparently successful relationship, over a period of years, and has worked in menial occupations; she has been enterprising in that she started a café of her own. She can perhaps be categorised as a survivor. It is relevant in this context to note that the financial evidence was quite remarkably obscure; this aspect is referred to later in these reasons.
16. The evidence as to Lindsay was also imprecise. He was sometimes described as supportive and at other times as very much not so. There were (very imprecise) allegations as to police involvement on occasions in respect of violent conduct by Lindsay but overall his appearance in these proceedings is shadowy in the extreme. I would not without hearing him and having regard to the entirely unsatisfactory nature of evidence against him make any finding to his discredit.
17. As is so often the case in immigration matters evidence as to money is not possible to reconcile. Evidence of minimal wages in menial occupations was coupled with evidence as to high living standards. There was much to and fro travel to Brazil. At some point in time, the mother purchased an apartment in Brazil which is at the very least comfortable, consisting as it does of three bedrooms and all of the other usual additional rooms and facilities. The Visa Applicant and his sister Alessandra are living in this apartment at present. The evidence was that the mother paid a deposit; as to the balance, there are as yet unresolved tribunal or court proceedings or litigation, but in the meantime there are (amazingly) no payments to be made. How this is possible was never explained.
18. The Visa Applicant’s evidence as to money matters can only be described as incredible. Before coming to Australia in April 1995 he obtained an HSC equivalent in about 1993 or 1994 and worked as a swimming coach. In 1994 he twice unsuccessfully applied for admission to the dental faculty of a university. (He said that there were 20 applications for every available place). Soon after coming to Australia as a tourist together with his sister Alessandra in 1995, the Visa Applicant began working illegally; he worked throughout his stay in Australia, sometimes legally, but more often illegally and in general terms as a cleaner or a waiter. His earnings were sometimes taxed and were sometimes “cash in hand”. The Visa Applicant’s said earnings were never such that they allowed for luxury items. When it was put to the Visa Applicant that on his earnings he could not possibly have afforded a car costing $24 000 (and also a contribution of $3000 to his mother’s café), his answer was that he earned high tips, and that sometimes those tips amounted to twice his ordinary salary.
19. One of the most enduring mysteries was as to why in general terms members of the Visa Applicant’s family preferred to live as cleaners in Australia when middle class professional living was available in Brazil. The mother was asked in categoric terms why, when the child visa applications failed she did not return to dental practice in Brazil, especially as her son was then working illegally in menial occupations in Sydney. The mother said that she could not afford to purchase dental equipment in order to resume practice. However, there was evidence which indicated that she did work as a locum in Brazil for a period during one of her extended return trips to Brail, and which would not have required that she have her own dental chairs and similar equipment. Moreover when she left Brazil in 1988, her dental office and fittings were (in accordance with Adriana’s evidence), leased out, and presumably so as to produce income.
20. At various times, the Visa Applicant, the Applicant and also the mother worked as cleaners at Tiffany’s which is a brothel. As to how such an occupation could be preferable to professional life in Brazil was inexplicable. While apparently life in Brazil for the poor can be hard, this does not appear to be so for the educated middle class. Brazil is hardly an impoverished country in a manner applicable to say Bangladesh.
21. It was conceded on behalf of the Visa Applicant that he resided illegally in Australia between 1 May 1998 and 14 September 2001. See in particular clause 33 of Exhibit A1 (as set out in clause 23 of these reasons) and also the chronology. It was conceded also as an irresistible inference that he came with the intention of staying. It was conceded that he made a false statement in his child visa application (802) made in October 1995 and in which he claimed that he was a dependent of his mother; it was also conceded as set out previously that he failed the character test. As to whether the Visa Applicant can be said to have agreed with that last concession is entirely doubtful.
22. In conclusion in this Part A the Respondent no longer challenges the genuineness of the marriage between the Applicant and the Visa Applicant.
Part B: The Evidence of the Visa Applicant - Evidence in Chief
23. Exhibit A1 is a very long document consisting of 18 pages and 74 numbered paragraphs. I include a part of Exhibit A1 as follows:
“I, Rodrigo Simoes Silva (dob:06/11/1973) of Avenida Arthur Bernardes 108/201 São Bento, Belo Horizonte, Minas Gerais, Brazil, Post code 30350-310 do hereby solemnly declare and affirm the following:
. . .
[2] I was born on 06/11/1973 in the State of Minas Gerais, Brazil. I grew up in Minas Gerais’s capital city, Belo Horizonte. I am the youngest of 6 children and we all grew up in Belo Horizonte.
. . .
[7] Towards the end of 1994 my mother who is an Australian citizen came to Brazil to visit us. She informed us that she was facing many difficulties with her de-facto husband, Mr Lindsay Dantier. She was going to the doctor very often suffering from severe panic attacks and was taking medicine to keep her safe. Lindsay was not respecting her. She told us that she had come to Brazil to stay for good. She could not take anymore of her situation with Lindsay.
[8] A week after her arrival in 1994, Lindsay started to call her saying that he could not live without her, that he was going to change, and asked that she not leave him. My mother was in love and believed in everything he said. We met Lindsay when he came to Brazil to visit my mother and he lived with us for 3 months. While he was here, he portrayed himself very well. He was very polite and helpful even though we could not understand much English. He seemed nice to me.
[9] My mother returned to Australia and suggested that my sister and I should visit her in the first semester of 1995 and postpone our university exams to the middle of the year. It seemed to be a good opportunity to give emotional support to our mother, experience another culture and perhaps, hopefully, be able to practice a bit of English which would most certainly help in our future careers.
[10] At the beginning of 1995, my mother reinforced over the phone her invitation for us to come and visit her and Lindsay in Australia. Alessandra and I pondered together about going. At that time my mother could not stay by herself in any place without window or lights, places like elevator, cinema, supermarket, shopping centers, covered car parking. Her medical situation was getting critical and we were all very worried about her. My mother was still having troubles with her de facto husband. The first time I found out about this was in 1994 when she came to Brazil to visit us. She had planned to stay with us until her de facto husband start to call her to come back to Australia. I do not know when those troubles started; I knew that her relationship with him was not going well. We had six months gap for the next exams for University in Brazil anyway. Those were the circumstances in which I decided to go to Australia.
[11] After Alessandra and I decided to go and visit my mother in Australia, we rang the Australian Consulate to find out what we needed to do to apply for a visitor’s visa. We were told we did not have enough salary to be granted a visa and that we needed someone to support us. My mother and her de facto husband organised the forms and documentation and sent them to Australian Consulate here in Brazil. We got a three-month visitor's visa, multiple travels, which was the time we were able to spend in Australia without affecting our plans of taking Undergraduate University courses in Brazil. Lindsay and my mother took charge of the situation for us. It seemed a complicated issue for us, another country, another culture and a completely different language. As a result we did not participate much in the visa process. The only thing we were told was that they were granting us a three months visitor’s visa that could be extended for another three months. We booked our ticket and waited for the money from Lindsay and my mother to get to Brazil to buy them. We departed Brazil on the 9th of April 1995. We were not told about any conditions other than we could not work which was fine to us because my mothers’ de facto was supporting us, so we did not need to work nor worry about it. We had also saved some money, which would keep us going for some time as we did not want to only depend on Lindsay and cause more worries to my mother, she already had too much to worry about.
[12] We arrived in Sydney on 11th of April 1995. We were quite frightened for we could not speak much English. My mother and Lindsay picked us up at the airport and drove us to a share accommodation in Bondi Beach where we stayed our first night. They dropped us there and left saying that they would be back next morning to move us to one of his apartments in the building where they lived.
[13] The next morning my mother came and picked us up. We went to Lindsay’s flat, the place where we were going to stay. We could not stay with them because their flat was very small, a bachelor's unit at an Apart-Hotel. Lindsay was the owner of next-door flat to theirs where we ended up staying.
[14] Every thing was well in the beginning. Lindsay was friendly to us, teaching us English; he offered to pay for English lessons. This is time when I first met Dora, my wife today. My mother saw her sister, Regina, at the church. Regina had told my mother that her youngest sister had recently arrived in Sydney and was studying English at a school close to our house. My mother therefore took me and my sister there to try to enroll for some English lessons at this school in Bondi but there were no places available. We did not enrolled in any English lesson at all, so it is impossible for me to have attended any classes if I was not enrolled. When I had applied for my residence application around October 1995 I had also asked whether I could change the conditions on my bridging visa so I could apply to study at Tafe. But this happened at the Beginning of 1996.
. . .
[16] Four or five weeks after we had arrived we started to help him with some money that we brought from Brazil. This was of our own accord. We wanted to help with some expenses like contributions towards some rent because we did not mean to come to Australia to be a problem but rather the solution of my mothers’ illness situation.
[17] Not long after our arrival my sister left Australia to stay with my other sister in Guam who was pregnant and was about to give birth. My sister in Guam already had another child who was only eleven months old which Alessandra was suppose to look after as well. Alessandra left Australia middle of June 1995 and I stayed alone at the other flat. That's when major problems started to befall.
[18] I felt very lonely, because all the things my sister and I used to do together I had to start to do by myself, we were all missing her a lot. After a while I started to get bored, I could not wait for her to come back so we could go back to Brazil. I was running out of money as well. I knew that I wouldn’t be able to stay there much longer paying rent with no job. Lindsay had started to get home late as he apparently used to do, not even having dinner with us, leaving my mother and me alone on the weekends. He acted like he did not to care about us especially my mother. It really didn’t affect me because I was only on holiday.
[19] One evening I went out to walk at the beach as I used to do and when I got home the guy that was working at the reception of the hotel, where we were living, told me that the police was in my mother’s apartment. Someone had called the police because they overheard a major fight between my mother and Lindsay. I could not understand much. I had very poor English. It was all overwhelming, embarrassing and strange. I went up and saw one policeman talking to Lindsay in the corridor outside the flat and other one talking to my mother inside. Lindsay had punched her in her arms and on the head. After that police event I had a serious and long conversation with my mother. I could not understand why she was living like that. I asked her why she would allow this situation to happen. Why wasn't she strong enough to leave him and run her own life? She did not say even a word. She was already far too involved with him. After that night Lindsay did not come home for 2 days. When he did, they started fighting again. My mother was getting so depressed and because I was the only one there for her she threw every thing on my shoulders.
[20] I did not know what to do. The only thing I was aware of was my responsibility towards my mother. I was compelled, totally lost in emotional turmoil that had nothing to do with me but I was too young to know better. I ended up assuming more than it was right for me to do in regards to my mothers’ situation. After this huge fight I decided on my own accord to get a job, because my mother was totally having nervous break down and was unable to help me, and I did not wanted to be in that situation, rely on her de facto husband because I thought he was taking advantage of that. That is when I found my first job. I have listed all my jobs in Australia below. Those 2 first jobs (Schuberts and Tiffany`s) I worked for cash in the hand because the employers did not pay tax for me, but the others I paid tax.
From
To
Name and Place of employment
Type of Business
Position
Middle of 1995, August.
7 or 8 weeks only
Schubert’s
Cake factory
Kitchen hand
End 1995, December
May 1996
Tiffany’s
Brothel
Cleaner at the Bar.
June 1996
July 1997
Esplanada Grill
Brazilian Restaurant
Waiter.
July 1997
July 2000
Mario’s
Italian Restaurant
Waiter, Bar attendant, Matre de
September 2000
November 2000
M Restaurant
Australian Restaurant
Waiter
23 of December 2000.
August 2001
AAPC, Summit Restaurant
International Restaurant.
Waiter.
[21] When my sister returned from Guam, in October 1995, I remember that I told her everything and she was shocked. She could not wait for the date we would fly back to Brazil and we both hoped that my mother would decide to come with us. My mother refused to go back; after all, she was still in love with this man and believed he could change. My Mother and Lindsay still continued their volatile relationship
[22] As my mother's panic attacks had eased ever since we had arrived in Australia and she seemed to have been getting stronger, we were touched and too involved to think clearly. Due to this emotional confusion and sense of responsibility to our mother rather than ourselves, my sister and I sacrificed thinking of our own plans of getting back to Brazil to get a degree and become qualified professionals.
[23] During one of those occasions when Lindsay and my mother were on good terms, my mother and I thought of going to DIMIA at the Rocks to get information about how I could extend my visa for a little bit longer. This was before my tourist visa expired in October 1995. We went there to get all that information in August or September 1995. So we gotten the information in August/September and we lodged the application early October 1995. We explained the situation we were going through. They advised us we could apply for another type of visa rather than a visitor visa. They advised us that I was in fact eligible to apply for migration under some category called FAMILY SUPPORT condition. We took all the information they had give us. It took us few weeks to organize every thing to send to DIMIA, so in October 1995 we went to DIMIA and lodged my application.
[24] When my visitor visa finished my visa was then changed to another category, a bridging visa, which in fact would permit me to work if I had requested it from the DIMIA. As this piece of information was not voluntarily offered to me it just never crossed my mind I could possibly have the right of request. I felt all the time like I was a guest staying as a favor at someone else's house, and could therefore take whatever was offered but could never dare to ask for much. I don't know why I felt this way. I don't know why I was so lost and still felt so responsible for my mother. It seems to me that my whole life I had been dependant on my mother's good will and I just could not let her down.
[25] Everything about my new visa application was explained to my mother because I could not understand much English. I only signed the papers where I was told. I applied for a visa under Family Support in October 1995. After one year, maybe a little more, DIMIA asked me for me to undertake the medical exams and deposit the sum of AUS$3.000 to be held by the department for 2 years as a warranty that I would not seek special government benefits. At this stage we saw a lawyer who explained that when DIMIA asked for a deposit it meant the application had been successful and accepted by the immigration department. I was told that after the deposit of the bond was made and a letter from my warrantor, Lindsay sent, I would be granted a Temporary Residency visa. I was to hold this visa for 2 years, and after apply for Permanent Residency.
[26] As I said above when I applied for the new visa I was not aware I could request permission to work. I found out later around beginning of 1996 from an Asian guy that used to work with me. So, I lodged the application under Family Support on October 1995, and I found out about that I could have permission to work only a few months later because the guy that used to work with me told me. I regret so much working without permission. I regret so many of these wrong decisions that I had made. Had I known better, had good parental guidance or spoken English at the time, my life would have been so much different. I wouldn't have to carry this burden and the stain on my character that I now bear which allowed a representative of the Australian Government to judge me so conspicuously and mercilessly.
[27] When I found out in the beginning of 1996 (I can not remember the exact date) that I could apply for work permission I went to DIMIA to apply for working visa and they issued me one straight away. They changed my visa to another bridging visa saying conditions NIL. I held that visa from the very beginning of 1996 until the final date of 1 March 1998. I already change my passport once because of the fact that it had expired and unfortunately I do not have it any more, but my passport is at the moment with my wife, ask her to show you.
[28] During the period of my visa application processing, my mother and Lindsay separated. I am not sure of the exact date of when this happened. He moved out but they kept in touch with him showing up for dinner occasionally. One day she found out from him that he had been taking other women out for dinner while they were still together. She threatens to take him to court with claims they had argued about and Lindsay got so angry and upset with her, he then wrote a devastating letter to DIMIA withdrawing his support or assurance for my application, I do believe it was around July or August 1997. He was not going to pay the amount of $3.000. Although I was responsible for that he was just a warranty that I would not rely on governments benefits. I do believe that he had this attitude because it was the only way he could affect or get back at my mother, only through me. I had no involvement with their problems however I became the target of his revenge against her. They were their problems not mine. We actually did not find out about the letter that he sent to DIMIA until a few weeks after when our solicitor were surprised with that decision from DIMIA, after they asked us all the medical examinations and the money we thought that we granted the visa
[29] After that DIMIA sent me a refusal letter near end of 1996 informing that I had 28 days to leave the country or apply to the review Tribunal for a review of this decision. That is what I did I applied to the review tribunal, And after few months they denied our application.
[30] The tribunal then sent a letter to me and my sister saying that our review application was denied, (sent to my sister first, December 1997, and at the beginning of 1998 they sent to me) we now had two options: apply to the court or leave the country in 28 days. My sister decided to leave the country; she bought her ticket and came back to Brazil in the beginning of 1998. My mother started to freak out that we were leaving her and so I did not have the heart to leave her alone in the psychological state she was in. She was total dependent on me for emotional support and I felt it was my responsibility as her son to look after her.
[31] I headed to DIMIA and that's when a series of bridging E visas were issued to me. The final bridging visa that I had expired on 30 April 1998. I was to leave Australia by then.
[32] I had several conversations with my mother who was petrified at what would happen if I left. I guess that was when I made the terrible decision of remaining in Australia unlawfully. I wish I could go back to that time and do things differently now that I know how much that decision was going to affect my chances of coming back to Australia to be with my future wife. I live now in remorse for having done so. There was just no winning in that situation. I have grown emotionally enormously due to all that and I would like now a chance to clear my character before the Australian Government. I seek forgiveness.
[33] Throughout this whole process the language barrier was a real problem for me. I could not make myself understood nor understand people clearly about my visa situation. On the different occasions on my first application form on 1995, I signed a paper without understanding it. I could not understand properly what I was signing and I understand now that it was my fault that I did not understand. I was expecting for someone to translate who could explain to me what I was signing because often the person from the Department that was helping me at the desk just showed me where to sign. He was not very polite, impatient and totally stressed because I could not speak much English. He only said things like "You forgot to sign here. There. Here. There again." Things like that. I only found out the consequences of signing these forms without completely understanding them here in Brazil during my interview with Christina Santos at the Australian Embassy after exactly 7 years because she showed me and now my English is better and I understood the question. She however did not even give me the chance to answer why I had signed these forms or explain what happened exactly. I would like to clarify that the only paper that I signed was the one, from my first application on 1995, where asked if I was working at the time of the application and I signed no, but I was already working. I do not have copies of this but Christina Santos has, she showed me during the interview. I Would like to clarify that Christina Santos mentioned that I have several Bridging visas E, What happened was, after the DIMIA refused my visa and send me a letter saying that I could apply for review at the court, the letter arrived a day late in my hands. That is when I went to the Review tribunal to find out what I could do and I was told to go to the compliance at DIMIA and explain my situation to them. So I went there and I spoke to the lady at the front desk, I explained to her that I could not leave my job strait away, because I had responsibilities with my employers, she wanted to give me the Bridging visa E, with the conditions of not work, no study etc… and leave the country in 28 days, after the date of the visa was issued, you can find that in my passport. She sound to me like she didn’t have many knowledge about my case and she issued me several bridging visas E. When I realized that she was not very confident about what she was doing I asked to talk to her Boss. But before that she gave me at least 2 Bridging visas E as you can see at my passport, So I spoke to Mr. Malcon asking him to help me, I explained to the situation but he could not help me much, the only thing he said was that some times he does not agree with the laws. I made the hugest mistake in my life overstaying and working in the country, witch I deeply regret.
Remaining in Australia from 1 May 1998 – 14 September 2001.
[34] My mother is a very good cook. She is not a qualified chef because she has never taken any courses in that area but she has a love for Brazilian dishes. Her friend, Benildes Aparecida Leal Araujo, and she started a small home business. They sold the famous Brazilian cheese bread frozen to shops and individuals. One of her customers, Luis, offered them to sublease a café at the city. He was paying the rent while the Café was closed equipped with everything - tables, chairs, plates, cutlery etc. He had tried to sell the lease but nobody wanted to take it on. My mother made the deal with him. She was able to use the café and the business name, (Honeymoon Café) paying only the rent and a bond of AUS$3.000. After three months, if it worked out all right, he would keep renting her the place until the end of his rental agreement with the owner.
[35] I used to help them a lot, working on the floor as waiter. After the 3 first months her partner left the café, the money that they were making was enough only to pay the bills of the Café. But my mother still wanted to keep it. I started to help more at the Café for my mother had no knowledge about running a business but was eager to learn and have a go at it. The café started to get busier, so I used to help my mother at the Café during the day, and work in another restaurant at night, where I was making the money to survive.
. . .
[39] My relationship with my wife started developing seriously from the end of 1999. Her friends and family became my circle of friends. We have lots of friends in common, great people who we met along those past years and who I miss enormously. Dora and I developed valuable friendships with Australians and friends from all other different cultures in Australia. My wife’s sister, brother-in-law and niece became part of my family. At the café we also made lots of friends and people were really sad about our situation and my undefined trip to Brazil.
. . .
[50] Just after our wedding it was a mutual unspoken thing to avoid talking about my leaving the country. I guess we were hoping for a miracle because we did not want to be apart. We felt it was too soon, too painful. We secretly wished we could get around it. We eventually decided we had to face it for the better, for our future to start once and for all.
[51] I left Australia voluntarily on 15 September 2001 reassuring her everything was going to be fine when I was dead scared myself. Soon after the roles reversed and she was the one reassuring me. Ever since I arrived in Brazil we've been speaking on the phone at least twice a week. There have been times when we speak everyday on the phone compulsively out of desperation and loneliness! It is our dream to build something beautiful together that keeps the flame alive.
. . .
[53] Christina Santos refused the grant of my visa on 27 May 2002 with defamatory reasons. We were appalled and terrified and felt that we had suffered a terrible injustice. Doralice came to Brazil to stay with me as soon as she could. She arrived in July and left in August 2002. We cried a lot with each other and were very depressed, lost, confused, and disappointed.
[54] We got our strength back together and applied for the Migration Tribunal Review. It was Dora who kept me going and raised me back from apathy. Every single day is so painful without her. Birthdays, Christmas, family reunions, all separated from each other. Nights and days filled with self-commiseration, self-evaluation, memories of the past, guilt, dreams of an uncertain future. We have managed to spend our two anniversaries together, a dream that we can no longer afford. It has been horrible to say the least. I have been having trouble with sleeping and I am now taking tablets to help out. I have also been prescribed anti-depressant pills.
[55] On April 2003 we decided that she should come to Brazil and try to stay here with me at least 6 months. I was doing casual jobs and they did not pay enough make ends meet. We tried to organize our life here when Dora arrived.
[56] While she was here the MRT called and interviewed us over the phone. They sent the papers back to the Australian Consulate for remit. We had thought back then that it was the end of our separation. We celebrated so intensely together. Made happy plans again. Dora went back to Australia to secure her job, get things organized on track again when then later the officer in Brazil refused my visa all over again but this time on character grounds. She disregarded my formal request of forgiveness.
. . .
[60] On top of all Dora has been the sole provider for us both since the savings ran out. We have large debts on our credit cards due to her trips, endless phone calls…we have borrowed money from my family and also from her family. We feel pressurized in every way in the current situation we find ourselves in and it has not been easy living. No, it has not. I can say that again. Our Families have given us wonderful support during this awful time we are going through. They have tried to watch over us and feel deeply for our situation. The thought that the Government of Australia with its representatives will realize the severity and unfairness of our situation is what keeps us going. In spite of all this we believe I have the right of forgiveness and we have the right to love each other and to our family.
[61] This situation has also seen my mother suffer enormously because she has seen me suffering. I believe she feels responsible and utterly guilty. She has provided me with all support imaginable. She has come to Brazil twice to see me. We have cried a lot together in mutual silence. I do not blame her. I am sometimes very angry at everything. I rebel against the past lack of guidance and I end up crying even more.”
24. The Visa Applicant came to Australia in 1995 in company with his sister Alessandra who is one year older than he is. He said in his evidence that he came to Australia to support his mother who was suffering from “panic attacks”. He did not say so in his tourist visa application because so he said it was not relevant. (In the interview he admitted that he did not say so because he feared that to do so would preclude the grant of a visa).
25. There was some conflicting evidence as to the precise nature of his tourist visa. He thought that it was for three months and renewable for three months after a departure from Australia (although he did not in fact depart Australia).
26. Before his tourist visa application expired the Visa Applicant applied in 1995 for a class 802 child visa; the essence of such an application is that a child visa is available to a child, albeit over 18, who is a dependent on the person sponsoring that application. The Visa Applicant admitted that he did not disclose that he was already working; he said “that’s correct; I accept responsibility”.
27. After the child visa application was refused the Visa Applicant attempted to seek its review by the Immigration Review Tribunal; however he was unsuccessful in that his application was out of time.
28. The Visa Applicant agreed that he was illegally in Australia from May 1998 to September 2001. In April 1999 he commenced a relationship with the Applicant which culminated in marriage in July 2001.
29. Some rather confused evidence as to precisely what schooling he had indicated that it ended when he was 20 or 21, and as he was born in 1973 this implies that his schooling probably finished in 1993 or 1994. In 1994 he twice unsuccessfully applied for admission to the dental faculty of a university. He worked before coming to Australia as a swimming coach for Pingo D’Acqua but did not at any time achieve an income threshold that would have had the effect that he was liable for tax in Brazil.
30. The Visa Applicant gave evidence as to his earnings from employers in Australia. He stated that at Tiffany’s he earned between $200 and $210 per week, at Shubert’s he earned between $300 and $320 per week. At Esplanda Grill he earned $200 per week (and he added “plus tips”); at Mario’s he earned $450 to $500 per week (again adding “plus tips”); at M Restaurant he earned $140 to $200 per week as a waiter, and at AAPC Summit Restaurant where he was again a waiter he earned $260 to $300 per week .
31. The Visa Applicant’s earnings were “cash in hand” at Schubert’s and Tiffany’s; he said that this was so because this method of payment was cheaper for the employers. When asked why this was so he said that his English was not good and that his employer took advantage of him and in any event he did not have any alternative.
32. The Visa Applicant was asked whether when he came to Australia he intended to stay. He replied “no, at no time”. He went on to say that Lindsay was responsible for obtaining his and Alessandra’s visas; however his mother’s relationship with Lindsay became worse and that Lindsay was taking advantage of them in that they were expected to bear expenses which, according to their understanding should have been borne by Lindsay. Having come to Australia with a return ticket he did not use it to return to Brazil, because his arrival (and that of his sister Alessandra) resulted in an improvement in his mother’s psychological condition. Accordingly they went to see the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) to apply for a family support visa for his mother. It was put to the Visa Applicant that when he applied for a tourist visa he did not speak of his mother’s problems because he feared that it would result in the refusal of a visa. It was then put to him that he gave a similar answer at the interview. His answer was “no, that’s a lie”. He went on to say that he did not know how serious his mother’s condition was. However, it was serious enough to require him to give up his job as a swimming coach, but, so he said, he could always get it back on his return and that the job would be kept open for him. He reiterated that “I had no intention of staying in Australia”.
33. The Visa Applicant said that he did not tell the authorities that he had resigned from his job because he was not asked. The authorities did require proof of support by his step-father; (this was a reference to Lindsay who was never in fact married to his mother).
34. The Visa Applicant agreed that he had breached Australian immigration law in a number of respects and said that he was repentant.
35. He refused however to agree that DIMIA granted a number of bridging visas which contained prohibitions against work. He agreed though that he remained in Australia without permission and he stated “I agree and I repent profoundly”. When questioned further about bridging visas and attached conditions he asked a question as to the year of grant of the bridging visa.
36. A number of questions as to his wedding in July 2001 need not be dealt with in detail given that the genuineness of his relationship with the Applicant is no longer in issue. Certain relatives who might have been expected to be present were prevented from doing so. By this time his mother had separated from his “step-father” Lindsay.
37. I can, I believe omit the Visa Applicant’s evidence (given in very long answers) as to his marriage. He met the Applicant in 1995. The Applicant then married someone else in November 1995 and at a much later time he met her again and the resulting relationship ripened into marriage. He was living with his mother at the time. They did not set up house together and he left for Brazil (shortly after the marriage) in September 2001.
38. Since returning to Brazil, he has kept in contact with the Applicant via the telephone. The Applicant has visited him on various occasions, and on one occasion for an extended period. The Applicant visited the Visa Applicant in June or July 2002 and stayed for approximately one month. In 2003 she stayed with him for nearly 6 months from May to September 2003. The Visa Applicant’s only source of income is the teaching of English to two pupils and through a Commonwealth Bank Credit Card which he uses and where the Applicant makes payments of the minimum amounts required in order to keep the card current. In addition he receives some help from his brother. His mother also has visited Brazil (in 2002/2003). He and his sister Alessandra live in the mother’s apartment in Brazil.
39. When asked about his mother’s health he said that he had concerns and that she felt guilty “because of what is happening to me”. He has never met Mr Wilkinson (his mother’s present husband) but said that her panic attacks have come back.
40. Lengthy questions as to bridging visas and to conditions attached were met with inconclusive answers and including “I don’t recall”. This was so in particular to a question of whether he had acknowledged that a bridging visa was granted subject to such a condition. He again agreed that he remained unlawfully and which he again said that he profoundly regretted. Expressions of profound regret in rather perfunctory terms occurred on a number of occasions but they were not couched in terms which carried much conviction.
41. I do not consider it necessary to detail a quite lengthy examination as to his bridging visas (six in all) and the fact that there were no work conditions attached in some cases. He was usually reluctant to agree that he worked in breach. He did agree that he worked in breach of his tourist visa. He did not accept that he worked illegally after the child visa was unsuccessfully applied for. It was put to him that he applied for the child visa in October 1995 but received permission to work only in August 1996. He again said that he did not recall “no work” conditions and again said that he profoundly regretted his illegal residence in Australia. He said that his main reason for staying in Australia was his mother.
Part C: The Cross-Examination of the Applicant on the First Hearing Day
42. The Visa Applicant said that he was 14 years old when his mother originally left for Australia. When asked whether he was accompanied, he answered in the negative although he was accompanied by Alessandra. He said also that of his siblings Adriana, Angela and Elbert all visited Australia in 1988 or 1989.
43. It was next put to him that after her arrival in Australia his mother applied for residence visas for her unmarried children. He denied that this was so. He said that he had no intention at that time of going to Australia because he was still in high school. He said also that he was cared for by his grandmother. (Adriana in her evidence said that the Visa Applicant and Alessandra were cared for by a maternal Aunt and their sister Valeria respectively).
44. The Visa Applicant said that his mother was very frightened of his father who still lives in Brazil. He described his father as “a nervous person”.
45. Since that time, and in relation to his siblings, Adriana is now resident in Australia having married an Australian citizen.
46. The Visa Applicant said that his mother went to Australia as a tourist in 1988, overstayed her tourist visa, met her de facto partner Lindsay and went back to Brazil to apply for a spouse visa. When it was put to him that she returned for this purpose in 1993 he answered “maybe”.
47. The Visa Applicant said that he left Brazil for Australia in April 1995 and before that and since he had turned 18 he had been a swimming coach. He then explained that this was possible on the basis that he went to school at night.
48. Having twice failed an entrance exam for admission to the dental faculty of a university in 1994, he intended to take the exam again in 1995 but he went to Australia instead.
49. When asked about his father he said that his father lives elsewhere in Brazil with his new family and was no longer a threat. (The evidence in general terms suggests that the father has disappeared as a factor in their lives.)
50. The Visa Applicant said that he came to Australia with his sister Alessandra who was then trying to get into university to study accounting. As to his own efforts for admission to dental school he said that he could try as often as was necessary and that age would be no bar to his efforts, and was in fact an irrelevant factor.
51. The Visa Applicant was asked whether when his mother returned to Brazil in 1992 there was any discussion as to his going to Australia with her. His answer was that she was having panic attacks and wanted to stay in Brazil. His mother returned to Australia in 1994 shortly after his birthday on 8 November 1994. He said that in these circumstances and after Lindsay had persuaded her to return, she asked them (the Visa Applicant and Alessandra) to go to visit her on holiday because they had never been to Australia before. Lindsay furnished assurances in order to sponsor their tourist visas and according to the Visa Applicant “we just signed the papers”.
52. The Visa Applicant’s evidence was that he and Alessandra had visas for three months which were renewable for three months. The records of the Respondent indicate that the visas were for six months. The Visa Applicant said that he did not want to leave Brazil but that his sister Alessandra did. Moreover, he thought that they could persuade their mother to return back to Brazil with them.
53. Soon after his arrival in Australia the Visa Applicant tried to enrol in an English class and where in fact he met his wife, the Applicant. In his statement (see Exhibit A1) he said that he was looking for an English teacher. When asked why he needed to learn English if he intended to return to Brazil he stated that he needed English lessons in order to communicate with his step-father. When again asked why he would seek to enrol in English classes when he was due to return to Brazil in another four weeks his answer was that “English is the language of the world”. When it was put to him that to practice dentistry in Brazil did not require English, he answered that many of the dental text books are in English. When he initially met his wife at this attempted enrolment, she was working at Tiffany’s as a cleaner. She obtained a job for him at Tiffany’s.
54. The Visa Applicant then said that things became much worse for his mother and so he decided to stay in Australia. Further evidence revealed that he worked at Shubert’s from June to August 1995 (described by him as a period of a few weeks) and that the job at Tiffany’s commenced in December 1995. He said that his mother and Lindsay were giving him board but not money. (He had said that he and Alessandra brought an amount of about US$1000 with them when they came to Australia.)
55. The Visa Applicant said that one of his sisters left Australia in September 1995. When it was put to him that she went back on 3 August 1995 he said that he was not sure about dates. He stated that he could not leave with her because his mother’s condition had become worse and she was having a breakdown. Meanwhile, he said that his mother would not however go back to Brazil because she loved Lindsay so much. The Visa Applicant’s evidence was that at the time he was the only one in Australia. Alessandra had gone to Guam where Angela was then resident in June 1995 and she had returned on 3 August 1995. The Visa Applicant admitted that at least from August he and Alessandra decided to stay in Australia but denied that the decision had been made earlier. He said that they came only to look after their mother. He was asked why they came on three month tourist visas, and he said that they planned to take their mother back to Brazil but that they did not end up doing so because she was still in love with Lindsay.
56. It was put to the Visa Applicant that he said nothing in Exhibit A1 about persuading his mother to return to Brazil. He had said that he and Alessandra came to Australia to give support to their mother and learn English but nothing about persuading her to return to Brazil. He was asked to explain why it was that Lindsay was behaving badly towards his mother but was providing him and Alessandra with support; he answered “because he thought that my mother was suffocating him and that our going to Australia would make her more secure”. He said also that his mother did not have anyone to share her problems with and felt abandoned.
57. It was put to the Visa Applicant that Lindsay provided a letter of support for his spouse visa application within the last two years. He answered that Lindsay was still friendly with his mother. She parted from Lindsay in about 1996 or 1997 and married her present husband, Mr Wilkinson, in February 2004.
58. The Visa Applicant was then examined at some length as to the child visa application made in October 1995. He was applying on the basis that he was a dependent and when he was already working (a fact omitted from the application). His answer was that they went to see DIMIA who explained that he could apply in order to support his mother’s psychological problem and so that she would not need a psychologist or drugs.
59. It was again put to him that he and his sister were applying on the basis that they would receive support from her but not that they would provide support to her. He said that they did what DIMIA told them to do. (This answer was particularly doubtful in the light of the mother’s evidence.)
60. It was then put to him that the form would have called for details of his employment in Australia and that he had not provided the relevant information. He answered “at the time when I filled in the form the language was a barrier and the person who filled in the form did not have much patience”.
61. He was then asked whether he was suggesting that he was under pressure from DIMIA to fill in a form which contained answers that were untrue. He answered “no pressure but he didn’t have patience. I found out later because Christina showed it to me and I was already working”. (Christina is a reference to Christina Santos who conducted the interview in Brazil.)
62. When it was suggested to him that he could have gone back to Brazil his answer was that it would have “killed” his mother. The Visa Applicant said that while his sister Alessandra went back to Brazil he stayed because “in a Latin culture women always feel better with a man there”. He had previously said that in a situation such as this a woman’s presence was necessary in preference to that of a man.
63. Further cross-examination as to the fact that Visa Applicant worked whether or not he was legally entitled to do so, elicited admissions that he did. He agreed there was a point in time when he went from having the right to work to a position where he did not, but that he continued to work. He said that he told his mother that he would have to leave but she said that he should not leave because his sister had gone back to Brazil. It was put to him that he continued to work and the answer was “yes, yes”. At a time when he was obliged to leave within 28 days he was asked whether he had had a discussion with his mother and why she didn’t go back with him. He said that “I explained to my mother that I had to go back and she said that if you leave I am scared and I don’t know what will happen to me, I plead with you to stay”.
64. When asked why they had not explored the option of his mother returning to Brazil he answered that this was because she is an Australian citizen and it would be difficult for her to go back. When it was put to him that his mother is a dentist he immediately replied that there are lots of unemployed dentists in Brazil. (This was one of the many answers which led me to consider that he was making up this evidence as he went along; if this answer were true it is unlikely that there would be such heavy competition for places in the dental faculty.)
65. The Visa Applicant said further that he did discuss the matter with his mother but that she had already been living in Australia for 12 years and that she could not go back because she was in fear of his father. It was pointed out that in 1994 his father was no longer a threat.
66. It was put to the Visa Applicant also that his mother was in Australia and working as a cleaner, and where there were proper careers available for either her or him in Brazil and so that a return to Brazil where she is a qualified dentist was infinitely preferable. His long answer was to the following effect: “but now being more than 12 years in Australia she has sworn loyalty to that country and she was scared to go back to Brazil. She loves Australia more than anything else. She has no plans to return and that is why she didn’t have courage and I because of compassion decided to stay in Australia with her. I knew I was wrong but I was scared of her committing something serious. I know I have erred, I apologise from the bottom of my heart. We couldn’t be having this discussion if I had gone back and if you have no character you have nothing. I have no character because I tried to save my mother’s life”. (There were many other statements of an equally melodramatic nature.)
Part D: The Visa Applicant’s Cross-examination Continued on the Second Hearing Day
67. The Visa Applicant said that his relationship with the Applicant commenced in April 1995 and then broke up and resumed and became serious at the end of 1999. He said that there was nothing other than his mother’s health, in between, which prevented him from returning to Brazil. At the beginning of 1998 his mother was no longer involved with Lindsay and she was working as a cleaner.
68. The Visa Applicant said that he told his mother that he had to return but that she pleaded with him to stay and so he did not return; he was fearful that she would become ill. He agreed that he was thus prepared to remain illegally in Australia and where he had no future. He agreed that when he eventually left Australia a sister took his place in order to care for his mother, but he denied that he was using his mother as an excuse.
69. The Visa Applicant said that he is the child closest to his mother and that she relies on him a lot. He denied that she abandoned him in 1998, he said that “she didn’t abandon me – she loves me as much as I love her”. And he repeated that throughout the years she was always”in my heart”. He said that she trusted him more than she trusted his siblings because he is the youngest. (He was the only witness who made an assertion of this nature.) He agreed that he could have done the “right thing” and gone back to Brazil but said that he could not do so because his mother was fragile. (The management of a café and given that its operational hours are so long is hardly an occupation for someone as fragile as the mother is alleged to be.)
70. In 2000 his mother opened a café and he helped out in it. He even contributed $3000. He did not receive any salary or other remuneration. He said that he went there in the mornings before starting his other job, and in January 2001 he started spending more time in the café. See clause 36 of Exhibit A1.
71. In June 2001 the Visa Applicant proposed to the Applicant. One month prior to the proposal in May 2001 the Applicant visited Brazil. I need not detail the lengthy cross-examination as to why she visited Brazil in May 2001 when she could have gone to Brazil with the Visa Applicant when he departed Australia a few months later.
72. The Visa Applicant said that he told the Applicant of his status right from the outset. He said that she could not accompany him when he left for Brazil because there was not sufficient money available. A series of questions from Ms Watson caused her to complain (entirely with justification) that he was not answering questions. The Visa Applicant said eventually that “I didn’t know what was going to happen with employment and we were going to have children and when we returned to Australia we wanted to buy furniture and have children and she is advanced in age”. (He made a number of references to the Applicant’s age and the fact that it is necessary for her to start a family soon; those statements were inapposite for a woman in her thirties.)
73. The Visa Applicant agreed that the Applicant is paying his debts out of the $500 per week she earns and that moreover helps with his support. In particular she pays for the upkeep of his car. He said that he bought the car for $23 000 or $24 000 and paid $15 000 as a down payment. When it was put to him that on his earnings he could not have bought a car, he said that his tips amounted to twice his salary at Mario’s. He said that he did not believe that the tips were liable for tax because customers were not obliged to tip and because he could not know in advance what tips he would obtain. It was, as he put it, only a form of gratuity. (Those statements as to the taxing of tips in the hands of waiters were ingenuous in particular in that he employed a tax agent.)
74. It was then put to the Visa Applicant that in the 2000 tax year he claimed a spouse rebate in relation to Maria Teresa Albuqerque. He said that this was done by his tax agent. According to the Visa Applicant after he told his tax agent that he was going out with her the tax agent proceeded to prepare the claim. The evidence indicates that his relationship with Maria Teresa was of short duration only and was not even remotely that of a spouse. If the Visa Applicant had a tax agent, the tax agent would presumably have advised him that tips are taxable, especially if of the magnitude that the Visa Applicant claimed, but in any event it is not conceivable that the tax agent would of his own volition have invented a spouse rebate claim. When it was put to him that he received a $1300 rebate to which he was not entitled he asked “why was I not entitled to it?”
75. Since returning to Brazil the Visa Applicant has not been employed in a full time occupation although he said that he had looked for employment as a receptionist either at a hotel or at an airport. He earns $150 per month for English tuition of two female students. As the manager of the building in which he lives and in which his mother owns an apartment, he derives no remuneration but does receive some relief from expenses. When asked why he did not return to his swimming coach occupation, he asked (rhetorically) “after all this time?”
76. When he was asked what his plans would be if he was unsuccessful in this application he answered “I am not even thinking of this. I believe in justice and I believe in God and I hope God will do the right thing by us. How will we have children and have a dignified life in a country where people are unemployed. I know I made a mistake, I repent it very dearly and all this suffering has reformed me”.
77. When he was asked whether he would expect the Applicant to join him he answered “we will keep on fighting”. But he then went on to say that “she will have to come and live with me in Brazil. I can not live without her. I am taking a drug for anxiety”.
91. Dr Lennings’ evidence was competent and acceptable. Dr Lennings acknowledged that although the Applicant is lonely she is a competent and self- reliant person. As to the mother Dr Lennings only had two hours to examine her and he has relied on witness statements by members of her family. He said that she suffers from panic disorders; he described her as being an excessive worrier and that her autonomic nervous system regulates a flight mechanism. Patients with panic disorders think they are unwell; the mother has had both pharmaceutical therapy and psychological therapy.
92. In cross-examination Dr Lennings was asked whether there would be adverse consequences for the mother if she went back to Brazil. He answered that he didn’t explore that scenario in depth. The impression he picked up was that she loved Australia, it was a better and safer place. When asked whether it was more rational to go back he replied: “that is a good question to ask. I can only answer that it would be more rational, but she had made an emotional investment in Australia”.
93. Dr Lennings said that the mother has a high degree of self-absorption. He said also that she is highly strung. When asked about any alleged nervous breakdown, he said that such an occurrence would not necessarily require hospitalisation.
94. To summarise, I think I can safely accept that the mother is psychologically unwell, although the extent and seriousness is not clear. Her behaviour in the witness box indicated volatility. But it must be remembered that she has managed through the years and that she worked and indeed owned a café, and moreover that at this time she has a stable relationship with her husband (Wilkinson) and that she does have a daughter (Adriana) in Australia. Her evidence can best be described as unreliable. In any event she did not ever return to the witness box and so never did complete her cross-examination. Ms Watson did not (mercifully) insist that she do so. (The Visa Applicant’s witness statement to the effect that the mother feels guilty about his position is doubtful).
95. In summary, in respect of Dr Lenning’s evidence there really is no difficulty in respect of the Applicant; as to the mother she is not sound, but Dr Lennings was, understandably enough, in the circumstances, unable to be precise about how serious her condition is.
Part G: The Evidence of the Applicant
96. The Applicant also worked at Tiffany’s but without (so she said) receiving remuneration from that source.
97. The Applicant initially met the Visa Applicant in 1995 when he went to enrol in English lessons. They were both workers at Tiffany’s and the Esplanada Grill, a Brazilian restaurant which has since closed down.
98. The Applicant married an Australian of Brazilian background in November 1995 and the marriage lasted some two years. Tp194 evidences her divorce and shows that the decree became absolute in March 2001.
99. I do not think that I need go into detail as to the Applicant’ evidence. She is plainly a personable and accomplished woman. She has a degree in communications obtained in Sao Paolo and she stated that she knew of the Visa Applicant’s status from the outset.
100. The Applicant has made a number of trips to Brazil both before and after her marriage to the Visa Applicant. She has financed those trips, so she said, through her regular employment at Australia Post and through her work as a cleaner. The Applicant said that she does assist with the Visa Applicant’s support by paying the minimum monthly instalments on the Commonwealth Bank of Australia credit card.
101. The Applicant agreed (somewhat reluctantly) that if this application went against the Visa Applicant she would be reunited with him in Brazil.
Part H: The Evidence of the Adriana
102. Exhibit A7 is a statutory declaration by Adriana Silva McCaig, the Visa Applicant’s sister and it reads as follows:
“I came before this Tribunal to state my inconformity with the unfair situation of my youngest brother, Mr Rodrigo S. Silva and his wife Mrs. Doralice Silva, a dear and close friend of mine.
I have witnessed the distress and pain they have been feeling and I feel utterly and deeply moved. I was able to spend 6 months in Brazil living with Rodrigo and can testify how depressed and devastated he is. I have also become very close to Dora and she has confided in me several times.
It is not a pretty sight to see anyone in this state, let alone people you care for. It makes it hard to believe in human justice and impartial judgement. It is obvious that the officer who analysed the case has deliberately and arbitrarily taken into account only past deeds. Regardless of his mistakes being unusually circumstantial, which they were, present deeds have been absolutely disregarded as if non-existent (Please bare in mind about 18 Statutory Declarations were submitted testifying on Rodrigo’s Good Character and Present Deeds). I affirm again the decision was arbitrary since all evidences were overseen and the right of Repentance, as established in the act under which he was severely judged abolished. The decision was discriminatory and unworthy of a fair society as Australia.
Rodrigo is devoted, honest, kind, trustworthy, loyal, humorous (or at least he used to be), hard worker, and protective of his family. He is an asset to any community. When I came to live in Australia everybody I met were very open to me just because I was Rodrigo’s sister. He is a popular and friendly young man always prompt to give a hand or an encouraging word.
I see a lot of him in Dora and that makes my heart ache. I see them so right for eachother. This is all too painful for anyone who is close to them; I can not begin to imagine what it is like to be in their shoes. Can you Sir?
Please reinstate their right to be together. Please exercise the right of forgiveness to my brother. It is well deserved.”
103. I do not think that the evidence of Adriana need be traversed in detail. She came to Australia in 1989 and she stayed until June 1992. She had studied physics originally in Brazil but changed track and thereafter studied industrial design. She married in Australia in April 1991 but that marriage failed, as did another subsequent relationship. She is now permanently resident in Australia and is an Australia citizen having married another Australian citizen.
104. Adriana said that the Visa Applicant and Alessandra were always close; they are the two youngest of the siblings and are close in age. When her mother came to Australia in 1988 the Visa Applicant was sent to live with Valeria (the oldest sibling) while Alessandra was sent to live with a maternal aunt. (The Visa Applicant said that he was cared for by a grandmother.)
105. Adriana gave evidence that in 1995 her younger sister Alessandra had finished high school and was already working at Rural Bank in Brazil. After Alessandra’s return to Brazil she qualified as an accountant and is working at the same bank in Brazil.
106. Adriana did not agree that the Visa Applicant came to Australia to stay and thus did not agree with Mr Levingston’s concession as to an irresistible inference to this effect.
107. It will be noted that Exhibit A7 is couched in terms which are critical, and in some respects very much so, of the Respondent and DIMIA. Although Adriana is aware of the history involved she did not retract that attitude.
108. Adriana’s evidence was of assistance in particular as to her siblings, details of whose current whereabouts are set out earlier in these reasons.
109. Adriana did not find it surprising that the Visa Applicant cannot use his English to gain full time employment in Brazil. As she put it, most people in Brazil now speak English. (This is probably something of an exaggeration.)
110. She described the Visa Applicant as not emotionally very mature and said that he was very much influenced. (As to what precisely this means is difficult to say.) Adriana is a presentable young woman who plainly has drive and determination. Notwithstanding her comparative youth and changes in relationships and direction, she is plainly an achiever.
111. Part I: Analysis of the Evidence
112. I entirely agree with Mr Levingston’s concession that the Visa Applicant came to Australia to stay. He resigned his employment, and all of his subsequent conduct is consistent with the fact that he came to Australia to stay in Australia. I also agree with Mr Levingston’s concession that he fails the character test. His evidence before me was often untruthful and contradictory and sometimes spectacularly so. His child visa application was false. His behaviour as regards illegal work in Australia was entirely self seeking, and his tax affairs were dishonestly conducted. Even assuming that I am prepared to treat his failure to reflect his restaurant tips for tax purposes leniently, his claim for a spouse rebate to which there was not even a shadow of an entitlement, does not fall into the same category.
113. I do not believe his evidence as regards his mother. He was abandoned by her; he claimed that he remained devoted to her but his evidence as regards his mother was often inconsistent.
114. I do not know why the Visa Applicant and his mother preferred living in Australia even though they were working in menial jobs, and in the case of the Visa Applicant illegally, when a middle class life in Brazil was an option. As I have said, Brazil is not Bangladesh. It may be a difficult country for the poor, but we are here concerned with a professional family of means. Adriana gave evidence as to numerous trips to and from Australia; she spoke of a comparatively recent Christmas in Australia in which all of the siblings were present. (It is impossible to speculate on where all of the money needed came from.)
115. The devotion displayed by the Applicant towards the Visa Applicant is to her credit. But it seems clear that alone among the six siblings he has been a non-achiever. Notwithstanding his protestations as to the fact that he could always make further attempts to enter dental school, he has not done so, and apparently has no future intention of doing so. He is not without intelligence; his command of English indicates that this is so. It may be that he is emotionally immature and it may also be that this is due at least in part to his abandonment by his mother, although it must be remembered that Alessandra in similar circumstances has managed very well. (He does not appear to have the drive demonstrated by at least some of his siblings and for that matter his mother.) None of this excuses his serious breaches of Australian law over an extended period. It also does not excuse his taxation behaviour and his unfailing readiness to assign responsibility to someone else was not to his credit. In the same context, he often in Exhibit A1 attributed “mistakes” to his lack of English. His English is very good indeed and would almost entirely have been at least serviceable on his arrival. He studied English at school and as his sister Adriana said, Brazilians these days speak English. (This may be true only of middle-class people such as this family.) The Visa Applicant himself said that one needs English to read dental textbooks. He has twice attempted entry to that faculty. Much of his work in Australia was as a waiter in restaurants; it is unlikely that he was able to speak to the patrons otherwise than in English. So it was that the false child visa application was the responsibility of his mother and at a time when, so he said, his English was not adequate. Equally the false tax claim was caused by the tax agent. His evidence before me was as I have said often contradictory, often untrue and frequently evasive. His readiness to make speeches (usually not relevant) did not assist. His expressions of regret for his “mistakes” were not credible. In this jurisdiction breaches of the Migration Act are often referred to as “mistakes”. That the Visa Applicant fails the character test is clear.
Part J: Direction under section 499(2) visa refusal and cancellation under
section 501 of the Migration Act 1958 (“Direction 21”)
116. The Visa Applicant having failed the character test means that it is necessary to consider the discretion contained in Part 2 of Direction 21. In this Part J references to numbered clauses relate to numbered clauses in Direction 21.
117. Clause 2.3 which sets out the primary considerations reads as follows:
“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 and the person under consideration, the best interests of the child or children.”
118. Clause 2.3 must be considered in conjunction with clause 2.5 which reads as follows:
“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 or recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
119. In respect of deterrence generally, I refer to clauses 87 and 88 of my decision in Re Ynson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 844 in which I referred to certain other decisions of this Tribunal and reading as follows:
“[87] In the context of deterrence, I refer to Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935; at paragraph 47, Deputy President Purvis QC 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 which 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.”
[88] As to whether visa refusals do in fact have a deterrent effect is difficult to evaluate, having regard to the number of cases of this nature coming before the Tribunal and the absence of any statistical evidence one way or another. However, to reward the Visa Applicant with a visa in these circumstances and in the light of his conduct would be altogether incorrect.”
119. In the context of deterrence and also recidivism, I refer also to clauses 85 and 86 of my decision in Ynson (supra), as follows:
“[85] In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted at paragraph 36 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 trangress (sic) in matters where truth and good faith could be deceptively withheld”.
[86] In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [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 to be 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”.”
120. I refer furthermore and in the same context, to clause 57 of the decision of Deputy President Chappell in Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897 and where he quoted from the decision of Deputy President McMahon in Phuoc Tuong Tran; clause 57 of that decision reads as follows:
“The legitimate interests of the Australian community in the maintenance of an ordered migration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
‘Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour (at 17).’”
121. I would not rate the risk of recidivism as high; however I do not think that it can be discounted having regard to the fact that the Visa Applicant’s conduct was so deceitful and so dishonest over so extended a period. It has to be said that he disregarded Australian law whenever it suited him or it was necessary to do so.
122. Concrete evidence as to deterrence is for obvious reasons not available. It is doubtful whether the website or reported decisions of this Tribunal read in Brazil. Ms Watson said in this context that this decision would become known in the Brazilian community and this may well be correct. There can be no doubt that to grant a visa in these circumstances would send entirely the wrong message.
123. As to clause 2.12 the expectations of the Australian community would in my view favour refusal of a visa.
124. In respect of hardship under clause 2.17, there is now, despite earlier contentions of a different nature, no dispute as to the genuineness of the marriage. And the support shown by the Applicant for the Visa Applicant is commendable. It must be accepted that there will be some hardship for her. But it must also be remembered that she married the Visa Applicant with full knowledge of his illegal status, and moreover that she can and is prepared to be re-united with him in Brazil and from where she herself comes, and where she was educated. The mother, whatever her mental ills are now is apparently happily married and in any event her conduct has been such that the hardship factor for her does not deserve much weight. There was no evidence (or even a suggestion) as to hardship to Adriana.
125. Overall the conduct of the Visa Applicant has not been as serious as that of some of the applicants who come before this Tribunal. But it was serious; breaches of section 234 of the Act are very serious in accordance with clause 2.6 of Direction 21. There were a number of such breaches and in addition breaches of section 235 of the Act. Mr Levingston raised a technical argument to the effect that when the Visa Applicant received “no work” bridging visas, he might have been entitled to consider that the consequence of breach would have been the termination of those visas. That contention cannot be tenable; the visas contained acknowledgments that the relevant visas were granted subject to conditions prohibiting work. During his evidence the Visa Applicant referred in very vague terms to good works in Brazil, but made no further mention of any of them and certainly produced no evidence to this effect. It has to be said also that the Visa Applicant did not improve his case by the nature of his evidence. He was warned by his solicitor at the outset of his evidence that it was important for him to tell the truth. It is apparent that the warning had little if any effect. The Tribunal cannot but regard untruthful evidence before it in a serious light. This Visa Applicant persistently gave evidence which was contrary to valid admissions made by his own legal adviser.
126. This is not a matter where the discretion can be exercised in favour of the Visa Applicant and accordingly the decision under review must be affirmed.
I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: Melinda Di Condio
AssociateDate/s of Hearing 24, 25 and 26 November 2004
Date of Decision 14 January 2005Solicitor for the Applicant Christopher Levingston and Associates
Solicitor for the Respondent Ms Dale Watson, Australian Government Solicitor
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