Simic and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2004] AATA 192
•8 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 192
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/422
GENERAL ADMINISTRATIVE DIVISION )
Re BOGOLJUB SIMIC Applicant
And
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon CR Wright QC (Deputy President) Date27 February 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) The Hon CR Wright QC
Deputy President
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/422
GENERAL ADMINISTRATIVE DIVISION )
Re BOGOLJUB SIMIC Applicant
And
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
CORRIGENDUM [2004] AATA 192
Tribunal The Hon CR Wright QC (Deputy President) Date8 March 2004
PlaceBrisbane
The Tribunal amends its Decision dated 27 February 2004 to read as follows:
(a) Page 2, para 1 insert the word “of” after the word “husband”
(b) Para 32 “no suggestions” should read “no suggestion”
(Sgd) The Hon CR Wright QC
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visas – spouse visa application – visa application not of “good character” due to past conduct – visa applicant worked in Australia in contravention of her visa conditions, fraudulently obtained a passport and fraudulently used a Russian Police Clearance Certificate – residual discretion to grant or refuse a visa application – whether refusal of visa application would cause hardship
Migration Act 1958 ss 499(2), 501
REASONS FOR DECISION
27 February 2004
The Hon CR Wright QC 1. The review applicant is the husband Irina Tarasova who lodged an application for a subclass 309 Spouse Visa dated the 1 November 2002 on the 5 December 2002.
2. The Minister’s delegate refused the visa applicant’s application on the basis that she did not satisfy the character test provided for in section 501 of the Migration Act 1958 (the Act).
3. The visa applicant was born in Russia on 23 May 1953. She visited Australia on a number of occasions between 1996 and 2002 on a variety of different visas. She was married to Vladimir Tarasov in Russia on the 6 January 1984.
4. On 11 October 2000 Mr Tarasov and the visa applicant applied for a subclass 866 Protection Visa. On 14 February 2001 the Minister’s delegate refused to grant the protection visa and Mr Tarasov then applied to the Refugee Review Tribunal for a review of that decision on behalf both of himself and the visa applicant.
5. On 7 July 2002 the visa applicant divorced Mr Tarasov and on the 13 July 2002 she married the review applicant, an Australian citizen. On 31 October 2002 the visa applicant withdrew her application for review to the Refugee Review Tribunal. On 11 November 2002 the visa applicant applied in Moscow for a Sponsored Family Visitor (short stay) Visa subclass 679. This application was refused.
6. On 1 November 2002 the visa applicant applied for a Spouse (provisional) Visa subclass 309 whilst she was residing in Cyprus. She later returned to Moscow where she was interviewed by Australian Embassy officials on the 10 April 2003 in relation to her application for a Spouse Visa. At the conclusion of the interview she was verbally notified of an intention to refuse that visa. The Minister’s delegate formally refused the grant of the visa to the visa applicant on 29 April 2003. The delegate’s decision was based on the ground that the visa applicant had not satisfied her that she was of good character. The principal matters taken into account by the Minister’s delegate were as follows:
(a)That in 2002/2001 the visa applicant was working in Australia whilst operating a restaurant on the Gold Coast in contravention of the conditions of her visa then in force.
(b)That the visa applicant fraudulently obtained a passport to travel out of and back to Australia in December 2000; an offence in respect of which the visa applicant had pleaded guilty on a complaint in the Brisbane Magistrate’s Court on 18 September 2002. The visa applicant was placed on a two-year good behaviour bond but no conviction was recorded.
(c) That the visa applicant had failed to disclose that she had been charged with this offence in two visa applications:
1.A sponsored family visitor (short-stay) visa subclass 679 for which the visa applicant had applied on 11 November 2002; and
2. The Spouse Visa subclass 309, which is the subject of the present review proceedings.
(d)That during the interview with the Australian Embassy officials in Moscow on 10 April 2003 the visa applicant gave false information:
1.Denying her use of names other than Shmelkina, Verbilo and Tarasova; and
2. Relating to her conviction on 18 September 2002 in Brisbane.
(e) That the visa applicant used a fraudulently issued Russian Police Clearance Certificate in connection with her application for the Spouse Visa.
7. On 7 May 2003 the review applicant applied to the AAT to review the decision of the Minister’s delegate. A hearing was scheduled for November 2003 before Deputy President Muller, but because the visa applicant was unavailable the hearing was adjourned. The matter was relisted for hearing on 12 December 2003 before me, but neither the visa applicant nor the review applicant could be contacted at the telephone number in Cyprus provided to the Tribunal by their advocate. The matter was consequently adjourned until the 19 January 2004.
8. On that date the hearing took place in Brisbane. The applicant was represented by Mr Esef Mirascija and the respondent was represented by Mr D Gallo. The review applicant was present for the hearing. The visa applicant gave evidence on affirmation by telephone from Cyprus with the assistance of a Russian Interpreter. A number of documentary exhibits were tendered and will be referred to as necessary hereafter.
9. It was plain at the outset that some of the grounds relied up by the Minister’s delegate in assessing character issues could not be sustained. An examination of the visa application forms in which it was alleged that the visa applicant had failed to disclose that she had been charged with the offence of fraudulently obtaining a passport revealed that the questions which the visa applicant had answered in respect of these matters had not been incorrectly answered.
10. The delegate’s additional reasons that the visa applicant, during her interview in Moscow on 10 April 2003 gave false information relating to her use of other names and her conviction in relation to her use of the fraudulently obtained passport depended upon acceptance of the proposition that by using that passport to travel between Australia and Russia she had been “known” by a name other than Tarasova because the name inscribed in the false passport was Irina Loren.
11. In a technical sense it might be said that by using the passport she was causing herself to be known by the name of Irina Loren but in the context of the questioning which took place, I do not regard her answers as constituting false information. So far as the allegation that the visa applicant gave false information relating to her conviction on the 18 September 2002 is concerned, it must be observed at the outset that she was not in fact “convicted” at that time.
12. The passage in the transcript of interview with the Embassy Official in Russia appears at Folio 79 of Exhibit 1 and, taken as a whole, I do not regard her answers to the questions there recorded as constituting the “provision of false information” in relation to that passport matter.
13. Turning therefore to the three remaining grounds upon which the Minister’s delegate reached a conclusion that the visa applicant was not a person of good character (and these were essentially the grounds upon which the character issue was contested in the hearing before me), the following observations seem appropriate.
14. There was a good deal of evidence as to the applicant’s involvement with a restaurant business in Australia. The question is was her involvement in that business a contravention of her visa condition that she not work whilst in Australia. She was the proprietor of the restaurant and I find on the basis of the whole of the evidence that she was in the habit of performing supervisory and cooking duties in relation to that restaurant. There is no need to review the evidence in detail. I find that the visa applicant did in fact work in Australia in contravention of the visa condition as alleged.
15. The next allegation, ie, that she used a fraudulently obtained passport to travel from Australia to Russia and return in December 2000 is not contentious. It is plain that she sought the assistance of a corrupt migration agent to obtain such a passport for the purpose of visiting her seriously ill son in Russia. At that time, it will be remembered, she had applied under the auspices of her first husband’s application, for a protection visa, and she was aware that if she was to leave Australia during the currency of that application her application for refugee status would be unsuccessful. It is for this reason that she chose to obtain the false passport.
16. This was a very serious matter and was so regarded by the sentencing magistrate who dealt with the case in Brisbane on the 18 September 2002. However, the sentencing magistrate took a more lenient approach to the question of sentence than I personally would have regarded as appropriate notwithstanding the applicant’s age, her absence of prior convictions and the circumstances in which she obtained and sought to use the false passport. The fact that a conviction was not recorded may, prima facie, indicate that the offence was not a particularly serious one but with any such assessment, I would totally disagree.
17. The remaining issue for consideration in respect of the character question arises from the visa applicant’s use of the fraudulent Russian Police Clearance Certificate in connection with her application for the Spouse Visa. The visa applicant claims that she asked a friend to obtain the Russian Police Clearance Certificate on her behalf and, for reasons known only to that friend, he obtained a Clearance Certificate which was plainly false. The question may be asked: why would the visa applicant’s friend obtain a false certificate unless it was for the purpose of concealing a bad police record against the visa applicant in Russia? In fact a valid Russian Police Clearance Certificate was subsequently obtained which indicates that the visa applicant has no previous criminal record in Russia.
18. The advocate for the visa applicant therefore asks: why would the visa applicant or her friend in Russia go to the trouble of obtaining a false certificate when a valid certificate would have disclosed her clean record at the outset?
19. This is an interesting question, but having pondered it for some time I have reached the conclusion that the only sensible inference to be drawn from the evidence is that the visa applicant was to some extent complicit in the obtaining of the fraudulent certificate. It was obtained at her behest and it was used by her in connection with her visa application. As her dealing in relation to the fraudulently obtained passport indicate, she is not averse to using false documents to assist her perceived advantage in respect of migration matters. It may be observed in passing that she had a perfectly valid passport to travel from Australia to Russia in December 2000 when she obtained and used the false passport.
20. On the basis of my findings in respect these three issues and applying the directions contained in the Minister’s Direction No 21 issued under sub-section 499(2) of the Migration Act 1958 I have concluded that on the basis of the visa applicant’s past and present criminal conduct and her past and present general conduct she does not pass the character test.
21. Having reached this conclusion I therefore turn to consider whether I should exercise my residual discretion to refuse or grant the visa sought. My discretion is also to be exercised in accordance (inter alia) with the principles contained in the Minister’s Direction No 21. The Minister’s Directions enjoin me to consider three primary considerations and a number of other considerations in determining whether or not to exercise the discretion. Primary considerations are as follows:
(a) protection of the Australian community;
(b) the expectations of the Australian community; and
(c) the best interests of the child (where relevant).
In the present case there is no relevant child so I turn to consider the other primary considerations.
22. In considering the protect of the Australian community, it is appropriate to observe that in obtaining and using a false passport, the visa applicant’s conduct can only be regarded as extremely grave. Her conduct in obtaining and using a false Russian Police Certificate is also serious. Her conduct in working in Australia contrary to the terms of her visa is by no means minor. I am of the view that the visa applicant well knew at all times that she was acting in breach of her visa conditions while she was running the restaurant business.
23. Paragraph 2.6 of the Minister’s Direction contains a list of the types of conduct, which the Government considers to be very serious in a migration sense. This list includes offences under the Act, including the presentation of false or forged documents, or making false or misleading statements in connection with entry into or stay in Australia.
24. A deliberate attempt to mislead Australian Migration Authorities and circumvent the relevant migration laws for the purpose of entering Australia is very serious misconduct and, taken in conjunction with her prolonged working history in contravention of visa conditions, and her use of a false police certificate indicate that the visa applicant has little if any compunction in attempting to mislead Australian Migration Officials, when to do so appears to suit her purpose.
25. I conclude that there is a significant risk of recidivism of the part of the visa applicant if she should return to Australia. It is also legitimate to consider the role of general deterrence, and the prospect that other like minded migration candidates may be deterred from committing similar offences if the visa applicant’s attempt to secure a visa is not successful.
26. In turning to the expectations of the Australian community, I think that any member of the community fully informed of the nature of the visa applicant’s conduct and approaching the issue with a sympathetic mind would nonetheless conclude that the visa applicant should not be rewarded in the present case by the grant of the visa sought.
27. Turning to other considerations, it may be observed that although there was initially some doubt about the genuiness of the relationship between the visa applicant and the review applicant, I have no such reservations. Indeed, counsel for the respondent did not seek to suggest that their marriage was anything but genuine and secure. It is therefore appropriate to consider the degree of hardship which may be suffered by the visa applicant or her Australian husband if the visa sought is refused.
28. The review applicant gave evidence at the hearing that he suffers from stage 2 diabetes and has a vascular problem. These illnesses make it inadvisable for him to travel extensively by aeroplane because of the risk of thrombosis. He also finds living in a cold climate such as Russia is very much adverse to his health. The review applicant is 53 years of age and has lived in Australia for the last 34 years.
29. The applicants first met when the review applicant was working for the visa applicant at her restaurant on the Gold Coast in April 2001. At that time he was unaware of her immigration status but plainly enough by the time they were married on 13 July 2002 he was well aware of her problems emanating from the use of a false passport.
30. When the visa applicant went to Moscow in November 2002 she was accompanied by the review applicant. Notwithstanding his physical ailments, when he found that his health was deteriorating in Russia, the couple moved to Cyprus where the visa applicant is currently working for a real estate company.
31. The review applicant is not working and travelled back to Australia specifically for the purpose of attending the AAT hearing. Neither applicant is prohibited from entering Russia or Cyprus, although the review applicant suggests that it would be hard for him to get a further visa for Russia. In Cyprus both parties are required to renew their visas every three months. The review applicant was in receipt of Australian Government sickness benefits before travelling overseas with his wife.
32. On the basis of the material provided, I am unable to find that there is any significant hardship in the two of them continuing to reside in Cyprus. There is no suggestions by the review applicant that the Cypriot climate in inimical to his health.
33. I have no clear evidence as to the applicants’ financial circumstances. The review applicant gave evidence that the visa applicant lost about four to five hundred thousand dollars while she was in Australia due to her being cheated by a business partner. However, there was some evidence as to her ownership of property and financial interest in business ventures which suggests that she may still be a woman of financial substance.
34. At all events there is no evidence upon which a finding could be made that their living in Cyprus constitutes a severe financial hardship for them. I accept the review applicant’s evidence that he deeply loves his wife and that that love is returned by her. On the basis of this strong relationship he says that he will live wherever she is obliged to live and I have no reason to doubt that evidence.
35. However, it is my opinion that the seriousness of the visa applicant’s conduct is not outweighed by any hardship which exists in relation to the applicant’s present circumstances. I am therefore of the opinion that the decision under review should be affirmed. My determination will be that the decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon CR Wright QC (Deputy President).
Signed: K Donnelly
Associate
Date/s of Hearing 12 December 2003 and 19 January 2004
Date of Decision 27 February 2004Solicitor for the Applicant Mr Esef Mirascija, Bell Legal Group
Solicitor for the Respondent Mr D Gallo, Blake Dawson Waldron Lawyers
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