Sneddon and Minister for Immigration and Multicultural Affairs
[2006] AATA 338
•10 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] aata 338
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1300
GENERAL ADMINISTRATIVE DIVISION ) JAMES SNEDDON Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr Julian Block, Deputy President Date10 April 2006
PlaceSydney
Decision The decision under review is affirmed. ...........................................................
Mr Julian Block, Deputy President
CATCHWORDS
IMMIGRATION – visa applicant arrived in Australia on student visa to study for a Masters degree at a university – obtained money to study from relatives - discontinued course after first semester but did not advise the authorities – travelled to Sydney and started working illegally contrary to visa conditions –worked illegally in Australia for three years – commenced relationship with applicant – stopped working illegally but remained living illegally in Australia for another two years –– visa applicant returned to Brazil to apply for provisional spouse visa – whether visa applicant intended to travel to and stay permanently in Australia – whether visa applicant is not of good character – Federal Court remittal – decision under review affirmed
Migration Act 1958 – s.235, s.234, s.501
Ministerial Direction 21
Smith v New South Wales Bar Association (1992) 176 CLR 256
Selvadurai v the Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347
D’Mellow and Minister for Immigration and Multicultural Affairs [2004] AATA 120
Lachmaiyha and Department of Immigration and Multicultural and Ethnic Affairs (1994) 19 AAR 148
Beale v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935
Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156
REASONS FOR DECISION
Mr Julian Block, Deputy President PART A - introduction and general
1. The decision under review is the refusal dated 6 April 2004 by the Respondent of a 309 Provisional Spouse visa applied for by Maria Cristina da Silva (“the Visa Applicant”) in Brazil on 15 March 2003; that application was sponsored by James Sneddon (“the Applicant”) who is the Visa Applicant’s fiancé.
2. The Applicant was represented by Mr R Kessels, a solicitor and migration agent, while the Respondent was represented by Ms Hervee Dejean of the Australian Government Solicitor.
3. The Tribunal had before it the T-Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
Exhibit A1:An undated statement by Luiz da Garcas Silva who is the Visa Applicant’s cousin and godfather; he is referred to in brief in these reasons as “Luiz”;
Exhibit A2:An undated statement by Zenith Gloria da Silva who is the Visa Applicant’s mother; she is referred to in brief in these reasons as the “mother”;
Exhibit A3:A reference by the Regional Vicar Genilson José Dallpicolla dated 10 January 2006;
Exhibit A4:A statement by the Applicant dated 16 September 2005;
Exhibit A5:A statement by the Applicant dated 18 January 2006;
Exhibit A6:A Statement by the Visa Applicant dated 16 September 2004; and
Exhibit A7:A statement by the Visa Applicant dated 18 January 2006.
4. The Respondent’s Statement of Facts and Contentions contains the usual helpful chronology of relevant events under the heading “Facts” as follows:
“…
Facts
Date
Event
15.03.74
Review applicant, an Australian Citizen, was born. (T5, f80)
17.05.68
Applicant born in Brazil (T5, f75)
11.07.97
Applicant arrives in Australia on a class 560 Student Visa (T2, f7). The visa was subject to many conditions including condition 8202 which states that the applicant must satisfy course requirements.
end 97 - early
98?
Applicant drops out of her course (T11, f230)
--.01.98
Applicant moves to Sydney to work in breach of the conditions of her student visa (T11, f230)
31.08.98
Applicant’s student visa expires (T2 f10).
02.02.01
Applicant and Review applicant meet (T11, f230))
-.11.01
Applicant and Review applicant move in together (T11, f230)
08.05.03
Applicant departs Australia to return to Brazil (T2, f7)
15.03.03
Applicant lodges application for 309 Provisional Spouse Visa with Embassy in Brazil (T5, and T2, f7 for lodgement date)
06.04.04
Application for 309 Provisional Spouse Visa refused (T2)”
5. This matter was first heard by the Tribunal in November 2004 and a decision by the Tribunal affirming the decision under review was issued on 30 November 2004. After an appeal to the Full Federal Court the matter was remitted to the Tribunal to be reheard. At a directions hearing (which took place prior to the hearing) it was agreed that the matter would be reheard de novo.
PART B - the evidence of the applicant
6. The evidence of the Applicant was not controversial and can be dealt with comparatively briefly.
7. The Applicant is a qualified accountant although he does not practice as such. He said (Ts p9) that “I work for an insurance company mostly involving either management accounting or business planning. At the moment I am more in a strategy role”.
8. The Applicant met the Visa Applicant at a party in February 2001. In July 2001 he found out that she was in Australia unlawfully. However the Visa Applicant explained to him that she had a plan which would regularise her illegal status and involving a sponsorship..
9. The Visa Applicant and the Applicant commenced living together in the second half of 2001. The Applicant said (Ts p10) that in mid 2002 the Visa Applicant had (independently of him) sought advice from either a solicitor or a migration agent and had ascertained that sponsorship would not be a viable option.
10. The Applicant agreed (Ts p11) that in 2001 and 2002 neither he nor the Visa Applicant made any particular attempt to regularise her position. However in or about March 2003 a migration agent, recommended by the Applicant’s father, was consulted and advice was received to the effect that a visa would have to be applied for by the Visa Applicant from outside Australia.
11. The Applicant said that the situation had become unmanageable, that the Visa Applicant was not working and that he was supporting her and (Ts p11) “by that stage I wasn’t happy with the way things were so I wanted to regularise things”. When asked why the Visa Applicant was not working, the Applicant replied (Ts p11): “She’d been working before. Obviously I had concerns that if she was working that she would eventually be found to be unlawful and be deported”.
12. The Applicant knew that the Visa Applicant had been working illegally. As he said at Ts p12: “Well I knew she didn’t have a visa. It follows that she mustn’t be able to work if she doesn’t have the correct visa”.
13. In the result and after first obtaining a bridging visa, the Visa Applicant left Australia in May 2003 and she has been in Brazil ever since that time. Contact has been maintained through the use in the main of phone cards and email, and in October 2005 (some two and a half years after her departure back to Brazil) the Applicant visited the Visa Applicant in Brazil.
14. The Applicant’s evidence was that since returning to Brazil the Visa Applicant has not found it easy to maintain a regular flow of work. Accordingly he has sent her money for her support; the level of financial support has varied in accordance with her needs.
15. The Applicant has little knowledge of the precise basis upon which the Visa Applicant had, as a student, come to Australia in 1997. He knew that she had enrolled at the University of Wollongong and that she attended that University during the second semester of 1997.
16. The Applicant was asked why he did not visit the Visa Applicant earlier than October 2005. The Applicant explained that the reason was in the main financial as it had been necessary for him to bear almost the entire financial burden of the legal proceedings. He referred also to work commitments which prevented him from doing so.
17. The Applicant said that his relationship with the Visa Applicant was still strong. When asked whether there had been “fraying round the edges” in the last few months he said there had been disagreements and that “the disagreements are generally a result of mis-communications by email” (Ts p23).
18. When it was put to him that in some emails the Visa Applicant had complained about silence on his part, he answered (Ts pp23-24): “Look, it’s been difficult for Christina. Christina has gone back to Brazil. She doesn’t have a whole lot of friends there. She hasn’t lived in Vittória for a long time. I’m her main confidante and vice versa. Christina sometimes gets upset if there aren’t, you know, regular emails which is understandable. It is difficult. I’m not going to dodge the fact that it is difficult being apart for so long. I mean that’s a reality, as I think anyone in this particular situation would agree”.
19. The Applicant was asked what options he would consider if the decision was again affirmed and in particular as to whether he would consider being reunited with the Visa Applicant in Brazil or in any other country (Ts pp25-26):
“…
Assume that it is against you, would you consider joining her in Brazil?‑‑‑ The reality is that I don't speak Portuguese. It's very difficult. I would have a lot of troubles in my line of work getting any kind of work in Brazil based on - because I don't speak Portuguese.
Even in a multinational?‑‑‑I work in the insurance industry. The insurance industry in Brazil is pretty small.
Yes, but you are a qualified accountant?‑‑‑I am, but I'm not really a practising accountant. I work in business analysis.
Is your answer to my question that you would not consider joining her in Brazil?‑‑‑Look, as painful as it would be, and it would be extremely painful, this has been a long process and the reason I've stuck at it is because I love Christina very much, as painful as it would be, I can't see how it would be possible to maintain the relationship and one of the most painful things for me in this whole process has been when I was printing out the emails there, I came across one of the emails that was around the time that the last AAT case was dismissed and obviously Christina, at the time, you know, was really upset, sent me an email mentioning that, you know, basically saying, you know, like she couldn't see how it was going to work. I should send her stuff back to her and it was really painful reading that email, because that's not obviously an outcome that I want.
For you to get you to send her stuff back?‑‑‑That's right. She was - at the time it appeared as though there was no chance of an appeal and obviously one of those painful things in this process is reading that email because it was very upsetting.
So basically your answer is, it would just be too difficult to go to Brazil. By the way, don't think I'm disputing this?‑‑‑That's the answer, yes.
Is there any possibility of your being reunited in another country, say, New Zealand?‑‑‑It's unlikely, it's unlikely. I live in Australia, I like living in Australia. I think it would just be far too difficult. Christina - look, again, I'm not an expert in the visa laws but Christina may even have problems getting into another country given that she overstayed her visa here. I have family and family friends in Australia as well.
Questions of this nature must have been asked at the first hearing.
MR KESSELS: They were and I apologise. They were asked on the last occasion. What's happened is, obviously because it's all done before - - -
THE D.PRESIDENT: But not done before me.”
MR KESSELS: No, sorry. It was an oversight.”
PART C - the evidence of the visa applicant
20. For reasons which will become clear later in these reasons it is necessary to deal with the Visa Applicant’s evidence in some considerable detail. She gave evidence by telephone link to Brazil in English. Mr Kessels assured me that she did not need an interpreter and in fact her evidence established that she is altogether fluent in English.
21. I intend, in dealing with the Visa Applicant’s evidence and because of its importance in this matter, to refer to and quote from the transcript (and in some instances quite extensively). I intend to do so in particular because I consider it the best means by which to indicate the precise nature of her evidence.
22. It is relevant to note that Mr Kessels had informed the Tribunal (Ts p3) that although the Visa Applicant formed the intention of staying in Australia after she came to Australia, she did not originally come to Australia with the intention of remaining in Australia.
23. The Visa Applicant was born on 17 May 1968 in Vitória, Brazil. Her father is deceased and she lives with her mother, brother aged 43 and sister aged 40.
24. The Visa Applicant after completing high school in either 1984 or 1985 attended university and where she obtained a Bachelor of Arts degree. She described her degree (Ts p32) as “Yes, I have a Bachelor degree in Arts, as in, like, English, English teaching and literature in English”.
25. After completing her degree the Visa Applicant worked on a full-time basis as a teacher of English at what she described as an English Institute. In fact she had worked as a teacher of English on a part-time basis while studying for her degree.
26. The Visa Applicant was asked how and why she decided to come to Australia (Ts pp33-34):
"… Could you tell the Tribunal a little about how you came to make a decision to come to Australia and why?‑‑‑Being an English teacher I have never been to a foreign country so I would like to meet one or two girls somewhere who speak English, that can improve my English, get some more education and change the field, instead of only language, English language, teaching literature so I decided to do a Masters degree. So I look up some information, some people told me, you know, internet, and then I decided that Australia would be an interesting place to go and study and do my Masters degree.
I'll go back one step. Did you say you spoke to people over the internet?‑‑‑Yes, I used to - the school that I used to work back in 1996 they had computers connected to the internet and then I use the chat line to make friends because they were from ..... and then I happened to be in one of those chat rooms with just Australian people, that was just by chance, and then I took interest in the country and when some of those people each go to university and then I get back that information about uni.
Did it turn out that some of those people were studying at Wollongong University?‑‑‑One of the people were, Wollongong University.
Because I'm just interested you ended up choosing to go to Wollongong University. Did you apply to any others?‑‑‑I did, I applied to Curtin University in Perth and then I applied to Wollongong University but the Wollongong came through, it came first.
You did not apply to study in any universities in Sydney?‑‑‑No, not really.
Why was there a reason why you didn't apply to come to Sydney to study?‑‑‑I thought it was going to be more expensive than Wollongong and it didn't even occur to my mind really and I thought that Wollongong was close to Sydney so I could go and visit Sydney.
Did you have any friends or family in Australia at that time other than these people from the internet?‑‑‑No. Real friends, no, I didn't have any.
When you applied to go to Wollongong University they would have provided you with some information about the course or what was the situation?‑‑‑I roughly recall that I've got some papers about it and then application form but I can't remember exactly what was said in that.
But you would have had to pay fees to come and study at the course?‑‑‑I'm sorry, can you repeat?
Yes. It would have cost money to come and study at the course; you would have had to pay for school fees at the university?‑‑‑Yes, yes, yes, that's true.
How did you pay for those?‑‑‑My cousin was, that is my godfather, he sort of, it was my grand-dad, he gave me some - they gave me some money, like, it was money from him, like, my family there, like, to study then I got a little bit that I had saved so I could pay for my study.
The cousin who is your godfather, is that Louis, is it?‑‑‑Louis, Louis Brassis.”
27. When asked why she did not chose a university which was nearer to Brazil and in particular perhaps a university in the United States or America, the following exchange (Ts pp35-36) occurred:
“THE D.PRESIDENT: Sorry to interrupt you. The alternatives which were open to you were numerous; America, for example, was much closer and there were many universities in the States. There would have been England, New Zealand, South Africa, there was Canada; how did you come to choose Australia which might not be everybody's choice as the top English speaking university place in the world?‑‑‑Because the United States are given some percentage ..... because everybody who is to go there goes there still and I wanted to go somewhere different and then from talking to those people over the internet Australia sounded a lot like Brazil, like friendly people, sunny weather, people are nice and friendly, so that was really my choice. I thought about England but England is a bit cold and Australia sounded better at the time.....
Sorry, I didn't understand your answer about why not the United States or Canada?‑‑‑Because everybody - because everybody go to the United States and I didn't have an interest in going there, not for studying.
You mean you weren't interested in going to the United States precisely because so many Brazilians went there?‑‑‑Not exactly because if I had to go somewhere in the world I wouldn't just go to the United States because I didn't want to go there, I didn't fancy the country. There was no particular reason. If I could go somewhere I would go somewhere else but the United States. Maybe would be India go there but, like, I didn't have any interest in studying there.
But the United States is a huge place and the variances are great. The universities in the east might be different from the universities in the west and similarly those in the mid west. I haven't really understood why the United States didn't seem like the best bet given that it was so close it would have been cheaper to travel there?‑‑‑Well, I'm going to be honest with you, like, perhaps the universities would be closer. I decided just to go somewhere different and Australia was large and represented to me and it sounded friendly so that's why I chose Australia to anywhere and United States I wasn't interested. I know they have very good universities there, it was close to home and it was cheaper but at the time I didn't take any fancy to go there.”
28. The Visa Applicant said that she traveled to Australia and commenced her studies at the University of Wollongong. She lived at the International Student House next to the campus. During examination-in-chief the Visa Applicant was referred to her statement evidence that she did not like the course and was asked to explain why. The following exchange is taken from (Ts pp36-37):
“In your statement you already sort of mention some of these things but you didn't like the course; can you explain why?‑‑‑The large part of the course I just thought that we had to read books and then talk about it and have lectures. Then I disappointed because I was expecting to, like, thesis, and then ..... a thesis because in Brazil it's ..... to have a Masters then you have a thesis.
THE D.PRESIDENT: Sorry, can you just say that again?‑‑‑Sorry.
Ms Da Silva, just repeat that. You were asked why you didn't like the course and you said I thought we had to read books and talk about them. Go on from there?‑‑‑I just had to read books and thought about it and have lectures. I thought that I was supposed to write essay work but then I was expected to do that and we didn't have in this course so I got a bit disappointed because in Brazil that wouldn't be valid as a Masters degree.
So ‑ ‑ ‑?‑‑‑It was my mistake that I didn't read - sorry, go on.
And Wollongong you say what happened was you had to read books and then talk about them and you didn't like ‑ ‑ ‑?‑‑‑I didn't have any problem to read ‑ I'm sorry. I didn't have problems in reading books and stuff like that.
I can't understand what was wrong with Wollongong.
MR KESSELS: Christina, can I just ask you, I spoke to you about this by phone in the past and as I understand it you were hoping to do a Masters degree by thesis rather than by course work because Masters can be done either by course work or by thesis, in Australia at least?‑‑‑Yes, that's correct, that was what I didn't know. I thought a Masters was going to write a thesis and that's it. That's how it goes and I can do that.
All right?‑‑‑So to do your Masters it has to be by thesis.
But in Brazil the way that you obtain a Masters is by writing a thesis and you can't do a Masters just by doing course work?‑‑‑No, you can't.
So when you started your course at Wollongong you discovered that it was a Masters by course work rather than a Masters by thesis, is that correct?‑‑‑All correct.”
29. The Visa Applicant said that when she commenced the Masters course at the University of Wollongong she discovered that it was a Masters degree by course work and not by thesis and that a Masters degree by course work would not be classified as a valid Masters degree in Brazil. She said categorically that it was not possible for her to do her Masters degree by thesis at the University of Wollongong.
30. Mr Kessels asked the Visa Applicant why she did not make enquiries or try to change her course. She answered (Ts p37) “Because I just decided that I didn't want to continue, what would be the point of the course, just basically didn't want to continue studying”.
31. The Visa Applicant completed one semester. When asked whether she passed her answer was: “I passed. I have four subjects if I remember and I passed three of them and one I don't think I handed in the final paper or I failed but I passed three subjects” (Ts p37).
32. The Visa Applicant agreed with Mr Kessels’ suggestion that she did not want to study further and did not re-enroll for the second semester which would have commenced in the first half of 1998.
33. The Visa Applicant went on to say that she did not find Wollongong to her liking. At Ts p37 she said: “That's true. I didn't make any friends, like, I'm living in university house and I'd made, like, one good friend and then I didn't hang out with anyone because no one would invite me to go or they didn't understand but I think so - I disliked everything about it”.
34. The Visa Applicant then said that she thought she would go to Sydney to see what Australia was like and would stay in Sydney until the end of her visa. When it was put to her that she had enrolled in a course on the basis that she was a student and on the strength of a student visa, she said that she thought she could stay in Australia until the end of the period for which her visa had been issued. (It may be noted that the Visa Applicant’s student visa permitted work for up 20 hours per week.)
35. The Visa Applicant went to Sydney in December 1997 and, from then on until she eventually left for Brazil in 2003, stayed in Sydney. She lived at various different places and she worked in various jobs. Her jobs included waitressing, babysitting and also some private teaching. At one time, and after meeting some Uruguayan people who had a dance group, she was a member of that dance group.
36. The Visa Applicant was unable to be specific about what exact work she did and when. It would seem that much of her work involved waitressing. Private tuition in English formed a very small part only of the work she did and that was apparently for a friend. At times she had more than one job. At times she was paid “cash in hand” i.e., without deductions for tax, and at other times tax was deducted. She said (Ts p41) that despite the casual nature of the work and despite the fact that she was in general terms mostly engaged in work which is not highly paid, she nevertheless earned more than she had earned in Brazil.
37. The Visa Applicant said that she was able, out of her earnings and after deduction of her living expenses, to send money from time to time to her nephews in Brazil, and being the children of another sister who had died. She was not specific about what amounts were sent and when.
38. The Visa Applicant had said that when she came to Australia she borrowed money from her godfather Luiz. (Ts p41). When asked whether than meant that she had to repay, she answered (Ts p41): “Not exactly, because he is my godfather he wasn't expecting for me to give him the money back”. It was then put to the Visa Applicant that she had not borrowed from Luiz but that rather the money was a gift and her answer was “Yes, it was a gift because he didn't ask back, so it was a gift. Then I had saved some of my own so it was very little what I saved”. The Visa Applicant then repeated (Ts p41) that the money was a gift; she said “It was a gift, I would say it was a gift because I didn't have to pay back”. When asked why she had earlier said that he had lent her money she answered “Because it was just like a bad way of me saying. I didn't have to pay it back. I had wanted to say that but I am being truthful, I didn't have to give him the money back so”.
39. The Visa Applicant said that the amount which Luiz gave her for her tuition was aud$5,000.
40. Ts p43 (and following pages) contain evidence as to the Visa Applicant’s various jobs (or perhaps some of them) and what she earned but there is little in that evidence which could be described as specific.
41. The Visa Applicant met the Applicant in February 2001. It was at that time that she had, so she said, some prospect of a sponsorship to work in a development company. Her contact was a Spanish man, Diaz who arranged for her to take some courses (of a secretarial nature) at a TAFE. Nothing ever came of that possibility.
42. The Visa Applicant’s father died in August 2002. She would have liked to visit her family but she did not have a visa. Her original visa had, of course, expired some considerable time previously and in the middle of 1998, assuming that it did not expire even earlier, and when she ceased to be a student.
43. The following exchange is taken from Ts p47-48:
“MR KESSELS: But it would be true to say that you didn't make a particularly effort to go and sort out the situation, did you?‑‑‑That is true. I didn't do anything about it at the time.
Can you explain why not?‑‑‑Well, it was in the back of my mind but it wasn't my priority because I didn't know the seriousness of my actions of being without visa. Working without permission and I was just like enjoyed the life I was having. I made friends. I had some work that would give me a bit of money and I was having a different and better type of life than I had here. I had that in the back of my mind but I didn't do actually do anything about it.
THE D.PRESIDENT: Can I interrupt you for a second? Ms Da Silva, listen to this question very carefully. Assume that you hadn't met James in February of 2001. By this stage you had been illegally in Australia for about three years and you like Australia and you were working as a waitress. Were you going to stay indefinitely doing waitressing and other work like that, baby sitting, enjoying Sydney and weren't your family on to you to say come back to Brazil where you have a job teaching which is better than waitressing? Was there no pressure on you to go home? It sounds like you would have stayed here more or less indefinitely?‑‑‑Can you repeat the last part of .....
Let's look back to a point in time which is February 2001. You have not met James, okay?‑‑‑Yes, I understand this one.
Let's go back to January 2001 where you hadn't met James, at that time. You were living in Sydney in a flat in Rose Bay, or a house in Rose Bay with two English girls and you were working as a waitress and you were earning other bits and pieces of money casually. Were you going to do this indefinitely?‑‑‑No, I didn't have an intention to keep doing this. At the time, like around the first time I made an inquiry I lived in another suburb, I lived with different people, you said something about the family telling me to come back here. They said that, and it is very stupid to say that I was young at the time and I was enjoying myself and then I wanted to be legal to do something else because I have a degree and I could do something else but at the time, like it didn't occur to me. It did but I just didn't give much importance and that was wrong and now I can see the consequences.
So what you are saying to me is, this is very important Ms Da Silva and I am inviting you to correct it if you want to, that doesn't mean that I disbelieve you, I simply want to be clear. In January 2001 you have already been away from home for three years. Your father he not yet died and your family would like to see you again. You are in a job which is menial by the standards of what you had previously done, and certainly not the right sort of a job for an educated girl like you. Yet you stayed on doing this menial work and not going home but continuing in the same way without making any real effort to regularise your position and I don't understand why that is so. If you would like me to repeat that I will?‑‑‑I understand. You don't understand why I didn't do anything about it.
Well, I have tried to put myself, well I have tried to get a picture of what you were thinking of in January 2001 and let me repeat so that we are absolutely clear. You had been away home for about four years. Your family are asking when are they ever going to see you again. You are working as a waitress and doing some baby sitting and some dancing but you are not doing a job which is commensurate with your academic qualifications. Certainly being a waitress is not as good a job as being a teacher, I would have thought, but nevertheless you continued on in Sydney doing this and not going home?‑‑‑That is true.
And without making any real attempt to regularise your position. So why is that so? You have got all these pressures. On the one hand there is your family in Brazil saying we would like to see you again. You also know that you are doing a job which is a waste of your education, why?‑‑‑At that time I had in the back of may mind, I wanted to go and see my family. I had in the back of my mind I wanted to do something else apart from that work. I just didn't do it. I know there was ..... job that I could be doing since I have got education but in Brazil if I came back to Brazil at that particular time, or even now I would be now, how can I say, you know in the house because to get a job, and to get jobs here it has been quite difficult and English teacher position has been depreciated over the years so it is ..... that the mediocre job was paying me more, like I had more perspective of making better money at that time doing that than coming back here.”
44. The Visa Applicant was asked about her contact with a migration agent at or about the time when she met the Applicant; she became upset and in consequence the hearing was adjourned. When the hearing resumed, the Visa Applicant said that she called the migration agent to obtain advice because her father was ill. Further evidence revealed that the migration agent was Christopher Levingston. Put in brief, she apparently received advice that a spouse visa could be applied for but only from offshore and only after she and the Applicant had been together for two years. The confused nature of much of this evidence is indicated by this exchange taken from Ts p51:
“MR KESSELS: All right. Perhaps just picking that up, so at that point when you'd made that contact, as you understood it from that day your choices, to use that word, were to remain in Australia, and you knew that that would be unlawfully, but remain in Australia until you were together for two years and then make an application here, or to depart Australia immediately and make an application to come back from overseas at that time?‑‑‑My understanding was that I could wait for two years and apply for the visa, for the spouse visa.
Either way, is that what you're saying?‑‑‑Yes.
In the email did they suggest that you could and see them about it, or that you get some more advice, or there was advice in the reply?‑‑‑No, but when you were, I could come and see them about it.
But you didn't do that?‑‑‑I, I didn't do that because it was around, my dad had just died, like was the same time as I leave, like my dad on 30 August, and then I ..... brothers, I was like really wanted to come home and I said to my brothers that it was going to hurt when my father was sick, and then I ..... this advice and then I really wanted to go and see my father alive and I wanted to be able to talk to him. And then my brother said to me there was nothing that I could do here, and then it was best that I could sought my things out and then come home.
Can I just say ‑ ‑ ‑?‑‑‑Yes, and then I, I remained illegally until the time that I went to, when it was two years.
All right. Can I just ask you, I'm sure the Deputy President is probably having the same difficulty, or maybe not, having the same difficulty as me. One part I just can't understand how your evidence, or if you could repeat what you said. After you'd had the advice from the agent, you were considering whether to go home because your father was dying, did you understand or did you believe that if you left at that time you would then be able to come back to Australia?‑‑‑If I - I knew that if I left, that I wouldn't be able to come back.
All right. So your understanding of the advice was that if you'd left at that point you would not be able to come back, is that what you're saying?‑‑‑Yes. Yes, it is.
All right. And that you would have to wait two years?‑‑‑Yes.
And that after that two years you could either go or stay, and they would help you either way?‑‑‑Yes, that's right.”
45. I do not think that I need deal in detail with the Visa Applicant’s difficulties in procuring work after her return to Brazil. Suffice it to say that to find work on a regular basis proved to be difficult and for the most part she was able only to work part-time in an institute teaching English.
46. The remainder of this Part C relates to the cross-examination of the Visa Applicant.
47. The Visa Applicant was asked how much her ticket to Australia had cost. She said (Ts p55): “I can't remember, I'm sorry. I don't remember. It was around, like a thousand and something, American dollars maybe. I don't remember”.
48. The Visa Applicant said, however, that the air ticket was a return ticket and not a one-way ticket and that she had intended to return before her visa expired.
49. The Visa Applicant said that the return ticket was valid for a year. She agreed that she arrived in Australia on 11 July 1997. She also agreed that her visa was issued so as to expire in August 1998. When it was put to her that her ticket expired before the end of her course she answered (Ts p55): “I can't remember but it was a year ticket”.
50. The Visa Applicant said that classes commenced in July 1997. She agreed that since the course was a one-year course it would end some time in the middle of 1998. She said (Ts p56): “Yes, it should be July or June, maybe June of the same year, of 1998. I'm not sure but I believe it was, like, June”.
51. The Visa Applicant was then asked whether she or her cousin Luiz paid for the air ticket. Her answer was (Ts p56): “Now, this one, my family got together because ..... will nearly buy things in instalment. You buy it and then you pay it off. So you just finance and you go buying and it will pay for it, sorry”.
52. The Visa Applicant agreed that the amount involved was a considerable amount of money for her family to find and specifically because of their own straitened financial circumstances. She said that the gift from Luiz of $5,000 was for her to undertake the Masters course.
53. Ms Dejean asked the Visa Applicant when she started feeling disappointed with the course; this resulted in the following exchange (Ts pp56-57):
“Now, you previously stated that you were disappointed with the course. Can you tell us about when you started feeling that disappointment, after July 1997?‑‑‑I can't remember the exact date but it was ..... sorry, September, because we didn't do anything different from - it can be the same thing all the time. There was nothing different. Like, I think it was around September/October maybe. I'm not sure. I can't remember it exactly but it was around that time.
But before you came to Australia, when you enrolled in the course, you'd read the course requirements, hadn't you?‑‑‑I might have. I may have for sure. ..... like something I had to read.
And your disappointment was that there was not a thesis component. Is that correct?‑‑‑Yes. That's true. Yes, it is.
And in fact, it's not just disappointing it's that, and in your words, it was not valid as a master's degree in Brazil. Is that correct?‑‑‑You could not write a thesis. Yes, that's correct.
And you didn't discover that until around October 1997?‑‑‑That's true.
You didn't think to read up on that before you came to Australia?‑‑‑No, I didn't.
I mean if this is a course that your family's put together for and your cousin has paid $5000 to cover you for, I'd have thought the very least you could have done was check that it would be a valid course in Brazil?‑‑‑Can you say that again, please?
Well, I'm putting to you that the $US1000 for your ticket plus $5000 for a course given to you by your cousin for a course that you had not checked would even be valid in Brazil, it's at the very least irresponsible on your part?‑‑‑It was very irresponsible.
And you started, you say, in around September or October 1997 to understand that the course was not appropriate for you or was disappointing?‑‑‑Yes.
You could have made inquiries to change courses but didn't?‑‑‑I didn't.”
54. The Visa Applicant agreed (Ts p58) that she attended the course for four and a half months.
55. The Visa Applicant agreed (Ts p59) that she did not re-enroll for the second semester in January 1998. She was asked whether it was necessary to re-enroll. She answered (Ts p59): “No, you had to re-enrol. You had to re-enrol. You had to pay for the semester and then re-enrol”.
56. See Ts pp59-60 for the following exchange:
“Well, how much did you have to pay for the first semester?‑‑‑I'm not sure. I think it was around $5000 or $1000.
And then would you have had to pay another $5000 to re-enrol?‑‑‑That's correct.
And where was that going to come from?‑‑‑I had to ask someone for the money.
I just don't follow. Let's go back into time a little?‑‑‑Okay.
When you left Brazil, you knew the cost of the air fare, and that your family paid?‑‑‑Yes.
You also knew that the course was going to cost you $10,000 ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ which was payable in two instalments, 5000 per semester, and your cousin gave you the first 5000. You also had a little bit of savings which no doubt you were going to use for pocket money, are you telling me in all seriousness that you came here with no knowledge of where the second $5000 was going to come from?‑‑‑That's true, I'm not going to lie.
Would your cousin have given you another $5000?‑‑‑I don't think he would, I don't think he would have. I thought that maybe we could meet a loan and I could pay, like I would work and send money back or something but that wasn't like, I had, you know, I don't have any idea.
I thought I could, just let me note that, I thought I could get a loan, do you mean a loan in Australia?‑‑‑No, no, I've got no salary to get a loan, not in Australia, I could never get a loan in Australia because I wasn't not a resident.
Understood but you said earlier when I asked you where the $5000 was going to come from, this was your answer as I have noted it, "I would have to ask someone", well who would that someone be?‑‑‑Yes, not me particularly, I would ask my family if they could borrow, if they could borrow from the bank or something.”
57. It will be noted then that the Visa Applicant agreed that she had no concrete plans as to how she would be able to pay for the second semester.
58. The Visa Applicant was asked, on the basis that the air ticket would expire after a year and if she meant to leave when her visa expired, how she planned to fund an air ticket back to Brazil. She said (Ts p61):
“You've got me there, I was going to leave when I have the ticket but I wouldn't say like, I wish I could but I couldn't leave until I had the ticket back home, like if I was going to leave one month after my ticket wouldn't be valid and so I would have to get some money and I don't know where from but it's true, I wouldn't have money.”
59. In subsequent cross-examination it was put to the Visa Applicant that she could not have been very serious about pursuing a course which was to cost $10,000. She answered that she was serious in the beginning but not towards the end of 1997. She also agreed that one of her reasons for overstaying her visa was that in Australia she had a better chance of work and better wages.
60. The Visa Applicant agreed that in a statutory declaration, dated 7 May 2003, (T documents, pp84-85) she declared that:
“…
I have been in Australia since 1997 and I have overstayed my student visa which I initially travelled to Australia on.
I realise that I should have returned to Brazil when my visa expired, however I did not return for a number of reasons.
The economical situation in Brazil is difficult and due to the associated depressed job market. There are many more work opportunities and the wages are higher in Australia.
I come from a very large family with a low socio economic background. My father was retired and the main income in my household used to come from his pension, which was very modest.
Being in Australia with better chances of work and far better wages was crucial to my decision to overstay my visa.
I had to choose between the hardship of being away from my family and helping them have a better life by sending them money from Australia and I chose to help them as much as I could.
…”
61. It was also put to the Visa Applicant (and she agreed) that in a submission by her agent dated 24 January 2004 (T-documents, pp235-239) the first paragraph under the heading “Background” at the top of T p236 reads as follows:
“Ms Da Silva remained unlawfully in Australia after the expiry of her student visa in 1998 as she was uncertain of her future in Brazil and felt her family would be unable to support her.”
PART D - the other evidence
62. The deponents to Exhibits A1, A2 and A3 were not required for cross-examination.
63. Clauses 2, 3 and 4 of Exhibit A1 (the statement by Luiz) reads as follows:
“…
2.I am 55 years old and I am married and have five children. I am a retired machinist. I am the cousin and God-father of Cristina da Silva, whom I have known all my life.
3.In about 1997, Cristina told me that she wanted to go to study in Australia and that she needed help with her forms because her immediate family did not have enough money to support her application. At that time I was working and had some savings and I agreed to support her application for a student visa. Cristina has wanted to study in Australia for many years and I was very happy to help her in any way that I could with the application.
4.Prior to making the application, Cristina told me about the course, and that she was only going to Australia for a year. She was very excited about the trip and we talked about it a number of times. At no time did I get the impression that she was intending to stay in Australia for more than a year, and I do not believe that she had any such plan.”
64. It will be noted that Exhibit A1 is altogether silent as to the amount provided. It is also silent as to whether further monies could or might have been provided although it is reasonable to infer from Exhibit A1 that no further monies would have been forthcoming.
65. In Exhibit A2 (the statement by the mother), clause 6 reads as follows:
“…
6.From about early 1999, Cristina began to send regular payments of money to us through a local bank. She would send money every month or so. The money was used to supplement my husband’s pension and to help support my two grandsons who had been left without support after the death of my daughter (their mother), Maria Veronica. Their father had abandoned them when they were young and they were trying to finish their education. The money Cristina sent went mostly to them. I have not kept very many records of these payments but have attached the two that I found in my belongings.”
66. It may be noted that the Visa Applicant said nothing at all about sending money to supplement her late father’s pension.
67. Exhibit A3 is a reference in such general terms and such vague terms that it need not be dealt with specifically and it contains, in my view, very little which is of assistance to the Tribunal.
PART E - analysis of the evidence
68. I accept the credibility of the evidence by the Applicant. I have some slight reservations as to his answers to questions regarding a reunion with the Visa Applicant if the decision is affirmed. He is clearly a highly qualified professional man and involved in an area where his skill and experience might well be marketable in Brazil, even though he does not speak Portuguese. At his level of expertise English is perhaps sufficient. That he is not prepared to consider Brazil (or for that matter any other country) because he likes Australia is, in the end, a matter of personal choice. It is, of course, relevant that from an early point in their relationship he was aware of the fact that the Visa Applicant was not entitled to be in Australia.
69. The Visa Applicant’s case was run on the basis that she came to Australia as a bona fide student and without any intention to stay in Australia permanently. It was conceded that an intention to stay was formed, but at a later time, and after she commenced her studies.
70. On this basis then the case for the Applicant is that she breached s.235 of the Migration Act 1958 (“the Act”) in that she worked illegally in Australia for an extended period but that she did not breach s.234 of the Act and where the penalties prescribed are such that the breach would have been far more serious. It was of course conceded that she stayed in Australia illegally but on the basis that while conduct of this nature may have consequences it is not of itself a crime. It is clear also that she breached her student visa conditions in that she abandoned her studies and did not advise the Respondent when she ceased to be a student. It was implicitly conceded that there may have been breaches of taxation law but clearly on the basis that any such breaches would have been of little or no moment. Put in other words it was, in effect, contended that the Visa Applicant’s breaches were minor in the scheme of things and certainly at the lower end of the scale. Put on this basis, and if those concessions were tenable, it is my opinion that this view would deserve serious consideration.
71. At the end of the hearing I allowed the parties to furnish written submissions as to the evidence given before me. The transcript in respect of the first hearing was not tendered in evidence and it was understood that the submissions could refer to the evidence at the first hearing in order to point to any relevant differences. It was indicated to me that in respect of some aspects the Visa Applicant was not at the first hearing examined to the same extent.
72. Written submissions were produced in accordance with an agreed time-table and consisting in the first place of submissions by the Applicant, followed by submissions by the Respondent, and then finally submissions by the Applicant in reply. While I intend to refer to the written submissions I do not consider it necessary to deal with them in detail.
73. The Applicant commenced his submissions with a reference to Smith v New South Wales Bar Association (1992) 176 CLR 256 to the effect that I should not lightly make a finding to the effect that the Visa Applicant gave evidence which was untruthful. Smith’s case related in its terms to disciplinary proceedings and this matter does not fall into that category; nevertheless I accept that such a finding should not be lightly made.
74. The Applicant contends that if the Visa Applicant had intended from the outset to come to Australia to stay she could have applied for a tourist visa or enrolled in a “shorter less expensive and less academically challenging course”. That is a contention which is to an extent conjectural; in the first place there was no evidence that her course was academically challenging; moreover a tourist visa would not, in all probability, have been issued for a year; even more to the point (and this too is conjectural) is the fact that Australian embassies in some countries have become warier about the issue of tourist visas to single young people because so many persons using visas of this nature come to Australia and overstay. Nevertheless that contention is such that it deserves consideration.
75. The Applicant also contends that it is significant that the Visa Applicant purchased a return ticket and went on to say; “Given her intended length of stay there is no reason why she would have been denied entry to Australia if the ticket had been only one way”. This was not an issue which was canvassed at the hearing in evidence or otherwise; it is conceivable however (and this too is conjectural) that a return ticket was required as a precondition of the grant of the visa.
76. The Applicant contends that after arriving in Australia the Visa Applicant did not, until the end of the first semester, find work. In making this contention, Mr Kessels posed the question; “Why wait so long before finding work?” The fact is that the Visa Applicant had no means whatever of funding her second semester tuition and so that work, it might be argued, was from the outset, necessary.
77. The mother stated in Exhibit A2 that the Visa Applicant had said that she was going to return at the end of her course. It must be noted that Exhibit A2 is a very short document (and remarkably sparse as to detail). It is doubtful whether the Visa Applicant’s family was concerned by her failure over the years to return (and even when her father died), although the Visa Applicant did say (Ts pp63-64), in answer to a question as to whether her family asked when she was coming back; “All the time… they just kept asking when I was coming….” That evidence is not consistent with other evidence that her mother was “happy” for her to stay away.” The Visa Applicant does not appear to have told her family her intentions, until after she had overstayed. (Ts p63).
78. The Visa Applicant contends that there was nothing unusual about her choice of Australia as the country where she would study and in preference to any other country and in particular the United States, and where being so much nearer the air fare cost would have been so much less.
79. The Visa Applicant’s evidence was that she made no enquiries at all before coming to Australia about what her Masters degree would entail and certainly did not ascertain that, on her evidence, a Masters degree by course work would be worthless in the context of her career in Brazil. (I note in this context that there was no evidence before me that the University does not offer a Masters degree in English by either course work or by thesis, and it is conceivable that either possibility existed. It may even be that a Masters degree by thesis was the alternative more generally adopted. Evidence to this effect would surely have been easy enough to produce). Nor for that matter was there evidence by the Visa Applicant as to her first semester results although they would presumably have been equally readily available.
80. The Visa Applicant did, towards the end of her evidence, say that to take the second semester she would have to re-enrol and that to do so would cost an additional $5000. That important factor was not referred to in her statement evidence. She agreed that she had no source of funds available for this purpose. She could not ask Luiz for more money and her family’s circumstances were straitened. At the same time, and as I have indicated, she made no effort to find work and which might have provided a part (albeit a small part only) of the cost. Work was found, as I have said, only at the end of the semester, some five months later.
81. The Visa Applicant then moved to Sydney and went “underground” and worked illegally (a breach of s 235 of the Act) for a period of about three years (She stopped working illegally after three years only because the Applicant feared that she would be caught and deported). She stayed in Australia for about five years illegally; she went back to Brazil because to apply for a visa required her to do so
82. In fact and in my view, and notwithstanding the Applicant’s contentions to the contrary the evidence strongly favours the view that she came to Australia from the outset in order to stay. When she arrived she was an educated English speaking woman of 30. Her evidence as to the University of Wollongong and the fact that she belatedly discovered that the Masters degree would be useless to her cannot be accepted.
83. It is the duty of the Tribunal to formulate the correct and preferable decision. To do so the Tribunal must make findings of fact. The Respondent referred in this context to Selvadurai v the Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347 where Heerey J said “A decision maker does not have to have rebutting evidence before he or she can hold that a particular factual assertion by an applicant is made out”.
84. The fact that she had a return ticket which expired prior to the expiry of her visa and that she did not use it is also significant. It is equally significant that having been granted a student visa she did not inform the authorities when she abandoned her studies.
85. That the Visa Applicant was not telling the truth is demonstrated in stark terms by the financial evidence. She started by saying that the tuition was provided as a loan by Luiz; that evidence was changed so as to refer to a gift by Luiz of the whole of the tuition cost, with her family providing the airfare. At a late stage of her evidence, she admitted that the tuition amount provided by Luiz was referable only to the first semester and that there was no realistic or credible source of funding for the second semester. Having abandoned her studies she moved to Sydney and commenced working illegally and persisted in that course for a lengthy period until after she moved in with the Applicant who persuaded her to stop her illegal work activities. The evidence as to her air ticket falls into the same category; it is unlikely on the balance of probabilities that she intended to use the return part of her air ticket. There is only one possible conclusion; she did not have any intention of completing the second semester and all of her subsequent conduct is consistent with this view. She moved to Sydney and worked (illegally) in a variety of jobs for a period of years because the financial rewards were greater than they would have been even for a teacher in Brazil.
86. The Visa Applicant sought to regularise her position but not with any great conviction and then only after the Applicant entered the scene. Vague evidence as to a possible sponsorship for someone illegally in Australia cannot be accepted. It must be remembered that the Tribunal is here concerned not with a young woman of no education and non-English speaking but rather an educated and mature young English speaking woman from Brazil. .
87. Once it is accepted that the Visa Applicant came to Australia from the outset in order to stay (and as the evidence unfolded no other conclusion is possible) the Visa Applicant’s conduct takes on an entirely different and rather darker tone. Her untruthful statements as to her intentions and as to her studies, to the contrary both to the authorities and to the Tribunal were untruthful and in breach of s.234 of the Act; the penalties for breaches of s.234 of the Act are such that they must be regarded in a serious light.
88. Having come to the University of Wollongong and commenced her studies, she does not appear to have pursued them assiduously and in a manner which would normally apply where a student had such difficulty in finding the necessary money. She said that she passed all of her subjects in respect of the first semester but then amended that evidence to say that she passed all but one in respect of which she either failed to hand in her paper or failed; she was not sure which was correct.
89. All in all, and despite the post-hearing submissions, I am obliged to hold that the Visa Applicant came to Australia on a permanent basis to better herself and her evidence as to her intentions in relation to her return to Brazil were untrue. She knew before she came to Australia that conditions were better here. She made no serious attempt to pursue her studies properly, and more particularly in circumstances where and as I have said, the family had with difficulty found the resources necessary to bring her to Australia for this purpose.
90. In all the circumstances I cannot come to any conclusion other than that the Visa Applicant was not truthful in her evidence before the Tribunal. To the extent that she gave similar evidence at the first hearing this would be so in respect of her evidence at that hearing also. Accordingly she breached s 234 of the Act; the penalties prescribed are such that that conduct must be treated as serious. She breached s 235 of the Act because of her illegal work. She was guilty of breaches of taxation law although as I said in D’Mellow and Minister for Immigration and Multicultural Affairs [2004] AATA 120 I do not intend to regard them in a serious light. She did not comply with her student visa conditions and she did not inform the authorities when she ceased to be a student. Her lengthy illegal stay in Australia was not criminal but it was nevertheless reprehensible. Having come to these conclusions I must conclude that the Visa Applicant fails the character test.
PART F - direction – visa refusal and cancellation under section 501 – No 21 (“direction 21”)
91. Having found that the Visa Applicant failed the character test it is necessary to consider the discretion contained in part 2 of Direction 21.
92. In this Part F references to numbered clauses relate to numbered clauses in Direction 21.
93. The primary considerations are those contained in clause 2.3 of Direction 21 which reads as follows:
“…
PRIMARY CONSIDERATIONS
2.3In 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.”
…
94. Clause 2.3 must be read in conjunction with clause 2.5 which reads as follows:
“Protection of the Australian Community
2.4…
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
…”
95. I do not think that the Visa Applicant presents any serious threat to the Australian community. Nor do I think that recidivism is a serious prospect although the fact that the Visa Applicant was prepared to contravene Australian law so continuously and for so lengthy a period must have the effect that this possibility cannot be discounted.
96. I refer in this context to Lachmaiyha and Department of Immigration and Multicultural and Ethnic Affairs (1994) 19 AAR 148, where Deputy President McMahon noted at paragraph 36 that:
“…The observance of truth in dealing with officials in migration mattes (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again transgress (sic) in matters where truth and good faith could be deceptively withheld.”
97. In the same context I refer to Beale v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, where 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.”
98. Deterrence is always a difficult question given that there are no clear statistics or evidence as to the effect of decisions of the Tribunal. However I consider that to grant a visa to someone who has so flagrantly breached Australian law for so long would send entirely the wrong message. I refer in this context to Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935; at paragraph 47, where Deputy President Purvis QC said:
“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 either 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.”
And in Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156 (19 November 2003), the applicant had (unlike the Visa Applicant) provided false statements and had lodged a protection visa application. Nonetheless, in drawing conclusions on the exercise of the discretion, DP Purvis relevantly stated that:
“His overstaying his visa was compounded by his obtaining employment when he knew that he was not authorised to do so. There is a likelihood of his repeating the misconduct. The protection of the Australian community, the deterring of others from seeking to engage in like conduct and the expectations of the community all warrant appropriate attention being given to them”.
99. The expectations of the Australian community, under clause 2.12, might be divided but on balance and a clear majority would, in my view, be against the grant of a visa in these circumstances.
100. Referring to clause 2.17 the affirmation of the decision under review will cause hardship to the Applicant. It must be remembered though that he was aware of the true position from an early stage. That he is not prepared to consider a reunion in Brazil or any other country is, as I have said, a matter of personal choice. His own evidence was clear; he would not consider leaving Australia. Although the Respondent did not contend that the relationship between the Applicant and the Visa Applicant was not genuine, there was evidence before the Tribunal (and which need not be detailed) that the relationship is not as strong as it might have been in the past. Apart from her complaints as to the Applicant’s silence at times the Visa Applicant sought the return of certain belongings when the first Tribunal decision was delivered.
101. In all the circumstances this is not a case in which the discretion can be exercised in favour of the Visa Applicant and the decision under review must be affirmed.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President.
Signed: A. Krilis
AssociateDate/s of Hearing 1 February 2006
Date of Decision 10 April 2006
Solicitor for the Applicant Mr Ron Kessels
Solicitor for the Respondent Ms Hervee Dejean
0
7
0