Stolnik and Minister for Immigration Multicultural and Indigenous Affairs
[2002] AATA 605
•23 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 605
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/197
GENERAL ADMINISTRATIVE DIVISION )
Re Mark Stolnik
Applicant
And Minister for Immigration Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President
Date23 July 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Olga Lucia Stolnik passes the character test pursuant to s 501(6) of the Migration Act 1958.
..............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 spouse provisional visa – character test – whether the Visa Applicant passes the character test – examination of Visa Applicant's past and present general conduct – examination of visa malpractice – held that the Visa Applicant's conduct is not so deficient that she fails the character test – in the alternative, the Tribunal's discretion should be exercised in favour of the Visa Applicant – held decision of the Respondent set aside – direction to Respondent that Visa Applicant passes the character test.
Migration Act 1958 ss 499, 499(1)(2), 501, 501(1), 501(6), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Leha and Minister forImmigration and Multicultural Affairs [2000] AATA 1054
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
23 July 2002 Mr RP Handley
This is an application by Mark Stolnik ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 10 January 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Olga Lucia Stolnik ("the Visa Applicant").
At the hearing, the Applicant was self-represented and the Respondent was represented by Glen Cranwell, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given in person by the Applicant and Lee Wayne Moeahu and by conference telephone by the Visa Applicant.
BackgroundThe Applicant, Mr Stolnik was born in Yugoslavia on 10 May 1957 and is aged 45. He migrated to Australia with his parents, arriving in 1970 at the age of 13, and became an Australian citizen on 17 November 1975. He married Jaroslava Stolnik on 19 June 1982 and this marriage was dissolved by Decree Absolute on 21 June 1988. Following this, Mr Stolnik also had a de facto relationship with Penelope Whitting with whom he had a son, Matthew Stolnik, who was born on 25 December 1991 and is aged 10.
The Visa Applicant, Olga Lucia Stolnik, was born in Columbia on 16 February 1969 and is aged 33. She is a Columbian citizen. Ms Stolnik had a previous de facto relationship with Javior Orlando Ceventes from 17 March 1984 to 14 July 1995, and had two children with Mr Ceventes: Jeniffer Ramirez who was born on 12 December 1986 and is aged 15, and Jonathan Ramirez, who was born on 20 November 1990 and is aged 11.
Ms Stolnik entered Australia on 11 August 1997 on a visitor visa valid for three months from the date of entry. She first met Mr Stolnik on 28 August 1997 and they commenced a de facto relationship shortly thereafter. On 30 September 1997, Ms Stolnik applied for a protection visa and was granted a bridging visa on that day. Her protection visa application was refused on 2 December 1997, although she claims not to have received notification of this until the New Year. On 15 December 1997, Mr and Ms Stolnik were married. On 15 January 1998, Ms Stolnik's application for a review of the refusal of her protection visa application was lodged with the Refugee Review Tribunal (RRT). On 1 April 1998, the RRT decided that it did not have jurisdiction to review the refusal of her visa because the application for review was lodged more than 28 days after notification of the original decision. By letter dated 24 April 1998, Ms Stolnik's solicitors, Parish Patience, sought the exercise of the Minister's discretion, pursuant to s 48B of the Migration Act 1958 ("the Act"), on the ground that Ms Stolnik did not receive the letter notifying her of the refusal of her protection visa application until 10 January 1998. On 9 November 1998, this application for the exercise of the Minister's discretion was refused. By letter dated 16 February 1999, a registered Migration Agent, Tahmina Rahim, sought Ministerial intervention under s 47 of the Act on behalf of Ms Stolnik. Intervention was refused by letter dated 4 March 1999.
On 15 July 1999, Ms Stolnik was granted a bridging visa WE enabling her to remain in Australia to study, valid until 15 January 2000. However, on 4 December 1999, Ms Stolnik departed Australia for Columbia. On 18 August 2000, Ms Stolnik's application for a subclass 309 visa was lodged at the Australian Embassy in Santiago, Chile. Ms Stolnik was interviewed by officers of the Embassy in Bogota on 14 February 2001 and, on 10 January 2002, a delegate of the Respondent decided to refuse Ms Stolnik's application. Mr Stolnik lodged an application with the Tribunal for a review of this decision on 8 February 2002.
Relevant Law and PolicyUnder s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…
Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Stolnik is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
Evidence
Mark Stolnik ("the Applicant")Mr Stolnik migrated to Australia in 1970 at the age of 13 with his parents. After leaving school, he spent some time living in Europe before returning to Australia where he was married. However, after five years, that relationship broke down and he and his former wife were divorced in 1988. He subsequently had a de facto relationship with Penelope Whitting with whom he has one child, Matthew Stolnik, who is aged 10. Despite their de facto relationship having ended, Mr Stolnik and Ms Whitting remain friends. Matthew lives with his mother but Mr Stolnik sees him regularly. He pays maintenance to Ms Whitting of $50 per week plus extra money when needed. They have a flexible arrangement. Like her mother, Ms Whitting has developed ovarian cancer which she has had for a while. Ms Whitting knows Ms Stolnik and has said that if she dies, she would like Ms Stolnik to look after Matthew.
Mr Stolnik said he met Ms Stolnik at a nightclub in Rockdale on 28 August 1997. At that time, Ms Stolnik was sharing a room in a house in Redfern with five others. Mr Stolnik described it as a "terrible place" and invited Ms Stolnik to stay with him. She accepted his invitation and moved into his house where, about a week later, they commenced living in a de facto relationship. They were married on 15 December 1997 and had a honeymoon in Queensland at his father's house.
Mr Stolnik said his wife relied on the advice of others in applying for a protection visa. She was helped by a friend when she was completing the protection visa application. She asked him what it meant to be living in a de facto relationship. He said that such a relationship came into being after two people had been living together for at least a year. He therefore told Ms Stolnik that they were not yet in a de facto relationship and it was not necessary for her to reveal their relationship in the protection visa application. Mr Stolnik said he did not otherwise assist his wife in completing the protection visa application. He considered the application unnecessary because she would later be able to apply for a spouse visa. Mr Stolnik believes his wife is in real danger and that is why she continues to move around in Columbia and not remain in the same place for too long. He was aware that his wife intended lodging a protection visa application on arrival in Australia.
Notification of the refusal of the protection visa application was sent by registered post. However, their local Post Office failed to notify Ms Stolnik that the letter was awaiting her collection. She did not become aware that the Post Office was holding the letter for her until 10 January 1998, by which date she was out of time for lodging an application for review by the RRT. Ultimately, she decided to do the right thing and return to Columbia in order to lodge her spouse visa application. Mr Stolnik said he filled in the spouse visa application which he sent to his wife for completion. He said he probably made the alteration to the answer to Question 9 of the visa application concerning the purpose of her original stay in Australia changing the word "refugee" to "tourist". He thought this was appropriate since her original visa was a tourist visa.
Mr Stolnik said since his wife has returned to Columbia, he has spent approximately $13,000 in telephone calls and has been sending her about $100 per month by way of financial support. Mr Stolnik said he works in the hospitality industry as a Shift Leader in Food and Beverage at the Darling Harbour Convention Centre. This is a permanent position and he has worked there for the past 2½ years. His wife's visa application does not cover her two children in Columbia because, at first, he will not be able to afford to bring them to Australia. The children are currently living with his wife, but her brother and sister-in-law have agreed to look after the children when she comes to Australia until such time as they are able to bring them here.
Olga Lucia Stonik (the Visa Applicant)Ms Stolnik said she lived in a de facto relationship for ten years until about 1994. Her two children were by that relationship. After the relationship ended, she lived with her parents. She has continued to work as a hairdresser and, on one occasion, she overheard a conversation of a person talking in her salon about a meeting between paramilitary groups who, on realising that she had been overheard, threatened that Ms Stolnik and her children would be killed if she spoke to the police. She later saw a photograph of the person whom she overhead in the newspaper which said that the person pictured was a dangerous guerilla. This person and her boyfriend were at that time renting rooms at the back of Ms Stolnik's large rented house and, on seeing the photograph, she was very frightened and decided to use a spare key to search their rooms. There, she found firearms and what she thought were drugs.
Ms Stolnik said she was very frightened by this and went to a travel agency with a view to going somewhere as far as possible away from Columbia. However, because she had rented the house for a one year period, she was not in a position to leave immediately and the person whom she had overheard started phoning and making further threats.
Ms Stolnik chose to come to Australia because she thought she might be able to obtain a refugee visa. However, the agency advised her that obtaining a refugee visa could take as long as a year and she needed to leave as soon as possible. She was advised that obtaining a tourist visa would only take about a month, so she thought the best thing to do was to apply for such a visa. She could not afford to take her two children with her, so they stayed with her parents.
Ms Stolnik arrived in Sydney on 11 August 1997 and stayed at first in a hotel. She had enough money to remain in Sydney for two to three weeks. Shortly thereafter, she met a Columbian man who helped her and found her a room to share in Redfern. About two weeks later, she met Mr Stolnik at a night club and, shortly after they met, he invited her to live with him. At that time, she could not speak English and they communicated with the assistance of her friend. Initially, she went to live at Mr Stolnik's sister's house but, after a week, she moved in with Mr Stolnik and they started living together. Ms Stolnik said she did not understand about protection visa applications. She obtained the application form from an office near Central Station and went to Rockdale to obtain a bridging visa. When she was completing the protection visa application, Mr Stolnik advised her that a couple were not considered to be living in a de facto relationship until they had been living together for a year. Ms Stolnik said she did not lie in completing the application form but she did not have any proof of what had happened to her in Columbia. Ms Stolnik said the letter notifying her of the refusal of her protection visa application was sent to their local Post Office which did not inform her that they were holding the letter, so that by the time she finally received it, she was out of time for lodging an appeal.
In cross-examination, Ms Stolnik was asked about a letter dated 18 June 2002 she had written for the purpose of the AAT hearing. In the first line of the letter she apologises for lying when she first came to Australia. Ms Stolnik acknowledged that she had lied in making her tourist visa application. She said the travel agency had advised her against making a protection visa application before coming to Australia and this was the reason for her applying for a tourist visa. She said she did this to save her life. At that time, she was receiving threats to her life and she still receives such threats. Since returning to Columbia, she has moved three times but is still receiving threatening phone calls. Ms Stolnik said she lives in a dangerous country where her cousin's family have been killed. She does not know what the people who are threatening her are capable of. She earns some money by working as a hairdresser from home for friends and family. She is living with her mother and children, her father having died. The father of her children also provides some money for the children and Mr Stolnik sends her money once a month.
Ms Stolnik was asked about her spouse visa application. She said her husband filled this form in for her in Australia and sent it to her in Columbia. She added to it and then lodged the form at the Australian Embassy in Santiago. With regard to Question 9 of the form and the purpose of her original visit to Australia, Ms Stolnik said she could not remember what was written on the form and who wrote it. She said she did not include her children in the protection visa application because, as with the tourist visa application, she could not, at the time, afford to bring them with her. Ms Stolnik was also asked about her answer to Question 30: she was unable to explain the answer that she had assets valued at an estimated Aus$50,000 which she intended to bring to Australia. She denied writing this in the application. Ms Stolnik was also asked about the interview with officers from the Australian Embassy in Santiago which was conducted in Bogata. She said the interviewer was "very nasty" and did not allow her to reply fully to his questions.
Lee Wayne MoeahuMr Moeahu said he used to work with Mr Stolnik at the airport and they became friends. They have now been sharing a unit for almost two and a half years. Mr Stolnik is a good person with a big heart and Mr Moeahu said he is proud to have him as a friend. Mr Moeahu has never met Ms Stolnik but he witnesses everyday what Mr Stolnik goes through as a result of their separation. He has seen Mr Stolnik cry many times. They clearly love one another and Mr Moeahu has no doubt their relationship is a genuine one. He has spoken to Ms Stolnik on the phone and she seems very lost and reliant on Mr Stolnik. Mr Moeahu also knows Mr Stolnik's son, Matthew, well.
SUBMISSIONS
RespondentMr Cranwell said the Respondent does not challenge the genuiness of the marital relationship between Mr and Ms Stolnik. However, the Respondent submits that Ms Stolnik's conduct involves a chain of dishonesty. Firstly, with regard to her application for a visitor visa, she did not disclose that the real reason for her coming to Australia was to apply for a protection visa. On arrival in Australia, the incoming passenger card which she completed stated that the purpose of her visit was a holiday of 25 days. She knew that she was failing to disclose the real reason for her visit and did this to circumvent Australia's immigration laws.
Secondly, with regard to her protection visa application, Ms Stolnik failed to disclose that she was in a de facto relationship. The Respondent does not accept Mr Stolnik's explanation that he told her that a de facto relationship did not exist until the parties had been living together for a period of at least 12 months. The Respondent contends that Ms Stolnik deliberately decided not to include this information in the application. The Respondent also notes that the statement made by Ms Stolnik in support of her protection visa application is different to the account Ms Stolnik gave in evidence to the Tribunal. In particular, Ms Stolnik made no mention in her statement of having overheard a conversation. The Respondent submits that the real reason for Ms Stolnik seeking residence in Australia is economic hardship. She gave evidence that she is working occasionally as a hairdresser. The Respondent submits that if she was fearful of her life, it is inconceivable that she would be openly operating a business from her home.
Thirdly, with regard to her interview with a Senior Migration Officer in Bogota, when asked about her spouse visa application and the overwriting of the word "tourist" over the "whited out" word "refugee", the Respondent contends that Ms Stolnik was seeking to conceal the real reason for her visit to Australia. At the interview, she said her husband changed this. In giving evidence, she said she could not remember. The Respondent contends that she has deliberately sought to deceive. In summary, the Respondent submits that Ms Stolnik fails the character test in the light of this misconduct.
With regard to the exercise of the Minister's discretion under Direction No 21, Mr Cranwell said Ms Stolnik's false and misleading statements constitute serious offences. The Tribunal has emphasised in a number of decisions the importance of the observance of truth when dealing with officials in migration matters. In ReLachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:
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 in dealing with the many reasons for coming to Australia.
Mr Cranwell said Ms Stolnik has demonstrated a willingness to make false statements and there is a risk that she will do so again. By affirming the decision not to grant the visa, others will be deterred from similar misconduct. With regard to the expectations of the Australian community, the Respondent contends that the seriousness of the misconduct is such that the community would expect that the visa application would be refused. With regard to the third of the primary considerations, the best interests of the child, Ms Stolnik has not included her two children in her visa application. The children lived with their grandparents during the two year period during which Ms Stolnik was in Australia and they continue to live with Ms Stolnik and their grandmother, their grandfather having died. The Respondent submits that the children's best interests will be served by Ms Stolnik remaining with them and their grandmother or with Ms Stolnik's brother and his family in Columbia. Mr Cranwell said the money which Mr Stolnik claims to have spent on phone calls to his wife in Columbia and in sending her maintenance is inconsistent with his and his wife's evidence that they could not afford to bring the children to Australia at this stage. Mr Cranwell also noted the statement in Ms Stolnik's visa application that she has assets equivalent in value to Aus$50,000.
With regard to other considerations, while the Respondent does not dispute the genuiness of the marriage, the Respondent contends Mr Stolnik was aware of the character concerns with regard to his wife before the protection visa application was made. He was also aware of the failure to disclose the de facto relationship. Mr Cranwell said relationship issues relating to Mr Stolnik and Ms Stolnik should therefore be given less weight.
ApplicantMr Stolnik said he will have to pay for his wife's travel to Australia and, at this stage, he cannot also afford to pay for her two children to come to Australia, given his other commitments. Nevertheless, he hopes that in time, with his wife in Australia, they will be able to afford this. With regard to the alteration in his wife's spouse visa application as to the purpose of her initial visit, he made the alteration to "Tourist" because she came initially to Australia as a tourist. Mr Stolnik said his wife's protection visa application was frustrated by the failure of Australia Post to deliver notification of the refusal so that his wife would have been able to apply to the RRT for a review within the required timeframe. Because of this, no effective appeal was available to her.
Mr Stolnik said he and his wife have now been separated for 2½ years. His wife has admitted that she was wrong not to disclose her true reason for coming to Australia and has expressed her remorse. Their lengthy separation has been punishment enough.
Application of the Law and FindingsAs stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Stolnik passes the "character test" having regard to her past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Stolnik, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9(c)).
Ms Stolnik admits that when she applied for a tourist visa to enter Australia, her objective was, when in Australia, to lodge a protection visa application. She was advised by the travel agency with whom she dealt in Columbia that to apply for a protection visa from Columbia would take up to twelve months, whereas an application for a visitor visa would only take approximately a month. Thus, Ms Stolnik was aware that she made a false or misleading statement with regard to the purpose of her intended visit to Australia when she applied for the visitor visa. The Respondent also states that on her incoming passenger card, Ms Stolnik stated that she intended to stay for 25 days for the purpose of having a holiday. The Tribunal notes that the incoming passenger card does not appear in the T Documents
The Tribunal accepts Ms Stolnik's evidence that the real reason for her wishing to leave Columbia in 1997 was to get away from the threats made to her as a result of her coming to know the whereabouts of members of a Columbian guerilla group. Ms Stolnik was not questioned in any depth about the statement she made in her protection visa application concerning the background to these threats but, in the Tribunal's view, Ms Stolnik's account, when read together with the statements in the T Documents, is sufficiently credible to enable the Tribunal to find that she had a genuine fear arising from these threats. Whether or not she had a well-founded fear of persecution sufficient to meet the definition of "refugee" in the Refugees Convention is not relevant to these proceedings. Thus, the Tribunal does not accept the Respondent's submission that the statements made in the protection visa application are false or misleading.
The Tribunal notes that the veracity of Ms Stolnik's claim were never examined by the RRT because it determined that it did not have jurisdiction to review the decision to refuse the protection visa application because the application for a review was lodged out of time. The Tribunal accepts the evidence of Mr and Ms Stolnik that Ms Stolnik's delay in lodging her application with the RRT was due to her not having received the letter of notification until 10 January 1998 as a result of her not being informed by her local Post Office that they were holding the letter for her.
The Respondent also points to Ms Stolnik's answer to Question 11 in the protection visa application concerning her marital status. Ms Stolnik did not provide details of the de facto relationship which she had already commenced with Mr Stolnik at the time that the visa application was lodged on 30 September 1997. While there is no doubt that she should have provided details of this relationship, the Tribunal accepts her and Mr Stolnik's explanation that he advised her that he believed that a de facto relationship was not considered to have been established until the parties had been living together for at least a year.
With regard to Ms Stolnik's spouse visa application, the Respondent submits that this contains a false and misleading statement in so far as it states that the purpose of Ms Stolnik's original visit to Australia was "holiday/tourist". The Respondent states that the word "tourist" was written over the "whited out" word "refugee". The Respondent submits that the alteration was an attempt to conceal Ms Stolnik's real purpose with respect to her initial application for a visa to enter Australia. When questioned about this at the hearing, Ms Stolnik said she could not remember who made this alteration. Mr Stolnik said that he made the alteration because his wife's original visa was a tourist visa. None of this really answers the claim made by the Respondent, although the Tribunal notes that beneath the details of the initial visitor visa are details of Ms Stolnik's protection visa application. The Respondent also points to Ms Stolnik's answer to Question 30 of the application concerning the value of her assets which she intended to bring to Australia. These are stated to be equivalent to Aus$50,000. Ms Stolnik gave evidence that she does not have assets of this kind and she was unable to explain how this figure came to be inserted in the application form. Neither was Mr Stolnik able to throw any light on this matter.
With regard to the interview with Ms Stolnik by a Senior Migration Officer on 14 February 2001 in Bogota, the Tribunal notes that Ms Stolnik was asked about the reason for her applying for a tourist visa. She openly admitted to the officer that she did not disclose her real purpose – which was to apply for a protection visa whilst once in Australia – in making her tourist visa application. The other answers Ms Stolnik gave to questions asked by the officer are consistent with the other evidence before the Tribunal.
On the basis of the above findings, the Tribunal concludes that Ms Stolnik made a false and misleading statement in connection with her first visit to Australia in 1997. The Tribunal accepts Ms Stolnik's evidence that her failure to disclose her relationship with Mr Stolnik in her protection visa application was based on a misunderstanding of what it is to be in a de facto relationship and the Tribunal finds that there was no intention on her part to deceive in relation to this matter. The Tribunal is also not satisfied that there is any substantial evidence to discredit the claims made by Ms Stolnik in her protection visa application concerning why she believed she was at risk in Columbia. At the hearing, Ms Stolnik expressed her regret and remorse in relation to her false statement when applying for her visitor visa.
The Tribunal had regard to the discussion of what is meant by good character in Goldie (supra) above and in Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, where the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
In the particular circumstances of Ms Stolnik's case, remembering, as is well known, that Columbia has been in a state of civil unrest for some years involving violent confrontations between guerillas and government forces, Ms Stolnik's misconduct, though serious, was essentially limited to her trying to escape Columbia. Ms Stolnik has admitted responsibility for this misconduct and has apologised for it. On the basis of the Tribunal's findings, the Tribunal is not persuaded that Ms Stolnik's past misconduct is sufficient to establish that her enduring moral qualities are so deficient that it is for the public good to refuse her entry and find she does not pass the character test in accordance with s 501(6)(c)(ii) of the Act. In accordance with s 501(6), she therefore passes the character test.
The Tribunal notes that even if were to find that Ms Stolnik does not pass the character test, it would exercise the discretion in s 501(1) to not refuse the grant of a visa. In relation to the primary considerations to which decision-makers are directed by Direction No 21, in the Tribunal's opinion, neither the protection, nor the expectations of the Australian community require that Ms Stolnik be excluded from Australia. While Ms Stolnik's misconduct should be regarded as serious, the likelihood that such misconduct will be repeated is minimal. The Tribunal recognises that the refusal of visa where a person has been guilty of misconduct will have a deterrent effect. Nevertheless, in the Tribunal's opinion, the Australian community would take a humane view of her situation and would not expect that a visa would be refused: Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 34.
With regard to the third primary consideration, the best interests of the child, the Tribunal notes that Ms Stolnik has two children, aged 15 and 12, who are not included in her visa application. While Ms Stolnik was previously in Australia, her children lived with her parents, and the children are now living with Ms Stolnik and her mother, her father having died. She has made arrangements for the children to be cared for by her brother and his family should she be granted a visa, with a view to Mr and Ms Stolnik seeking a visa for the children to enter Australia at a later date, when they are able to afford this. Mr Stolnik also has a son aged 10 who currently lives with his mother. Mr Stolnik gave evidence that the mother has ovarian cancer and it is her wish that if she dies, Mr and Ms Stolnik should care for him.
In terms of the other considerations to which the Tribunal is directed by Direction No 21, the Tribunal has no doubt that the marital relationship between Mr and Ms Stolnik is a genuine one and that they are both suffering by their separation since 4 December 1999. Nevertheless, Mr Stolnik was aware of his wife's false statement in relation to her visitor visa application from early on in their relationship.
A weighing up of the primary and other considerations leads the Tribunal to conclude that Ms Stolnik is not a risk to the Australian community, that the Australian community would view her situation humanely and that the parties should be permitted to resume a normal marital relationship.
The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Ms Stolnik passes the character test pursuant to s 501(6) of the Act.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed: .....................................................................................
AssociateDate/s of Hearing 8 July 2002
Date of Decision 23 July 2002
Representative for the Applicant Self-represented
Representative for the Respondent Mr G Cranwell, Solicitor
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