Talevski and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 55
•20 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 55
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/897
GENERAL ADMINISTRATIVE DIVISION ) Re HONGSHI CHEN TALEVSKI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date20 January 2005
PlaceSydney
Decision The decision under review is set aside. The application is remitted to the Respondent with a direction that the available discretion be exercised in favour of the Visa Applicant.
R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – character test – best interest of the child – severe impact on Applicant - discretion exercised – decision under review set aside.
Migration Act 1958
Ministerial Direction 21
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648
Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766
McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805).
REASONS FOR DECISION
20 January 2005 The Hon R N J Purvis Q.C., Deputy President application
1. On 29 January 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) refused to grant to Mr Blagojce Talevski (“the Visa Applicant”) a spouse (provisional) (subclass 309) visa on the ground that he did not pass the character test. The discretion available to the Respondent was not exercised in favour of the Visa Applicant.
2. The Visa Applicant is the husband of Ms Hongshi Chen Talevski (“the Applicant”) in whose name this appeal has been brought.
3. In the reasons given for the possible refusal to grant the visa by the Respondent it was amongst other matters stated:
“Evidence of grounds for refusal
7. The evidence that Mr TALEVSKI may not pass the character test is set out in his Australian criminal history, dated 7 February 2004, and in his immigration records.
…
A record of criminal convictions supplied by the Australian Federal Police, on 7 February 2004, shows that Mr TALEVSKI has been convicted of the following offences:
08/08/2001 Assault Occasioning Bodily harm – fined $750
07/02/1997 Criminal Damage
Unlawful Assault (3 charges) – fined $1500
8. Mr TALEVSKI’s Departmental files…indicate that Mr TALEVSKI has shown a disregard for Australia’s immigration laws by:
- remaining in Australia unlawfully during the periods of 31 July 1997 to 2 June 1998, 28 September 2000 to 21 March 2001 and 22 May 2001 until his removal from Australia on 23 November 2002.
- escaping from Villawood Immigration Detention Centre on 22 July 2001.
- attempting to mislead Departmental Compliance officers of his true identity on 12 November 2002, by providing a Victorian Drivers Licence, Visa card and National Australia Bank debit card in the name of Brane TOPIC…
…
25. Mr TALEVSKI has not been convicted of any criminal offences since 8 August 2001. His criminal offences were all committed when he was aged between twenty-four and twenty-nine.”
the hearing
4. At the hearing of the appeal application the Applicant appeared on her own behalf. The Respondent was represented by Mr Avinesh Chand, a solicitor employed by Clayton Utz Lawyers.
5. The documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T6, ST1 to ST21. Documentary material tendered by the Applicant was also admitted as exhibits and marked accordingly:
Exhibit No
Description
Date
A
Report of Dr Blagoj Kuzmanovski
2 November 2004
B
Report of Dr Vito Zepinic
22 October 2004
C
Report of Sutherland Hospital & Community Health Service
3 November 2004
D
Bundle of character references
E
Statement of Mr Blagojce Talevski
27 October 2004
F
Statement of Mr Zlatko Bajek
29 October 2004
G
Reference of Saso
8 December 2004
H
Reference of Mick Temel
16 November 2004
J
Reference of Rade Angelkoski
7 December 2004
K
Letter of Visa Applicant with translation
9 December 2004
L
Reference of Katrina Hurley
7 December 2004
M
Statement of Applicant
10 December 2004
6. Oral evidence was given by the Applicant, the Visa Applicant (by telephone and with the use of a Macedonian interpreter), Ms Anette Jespersen, a case manager at Caretakers Cottage, a crisis refuge and Mr Igor Talevski, the brother of the Visa Applicant and a permanent resident with his family in Australia.
issues for determination
7. As is apparent from the above extracts of the Respondent’s reasons for the decision to refuse granting the visa, the allegations made as they relate to the conduct of the Visa Applicant are serious. Character is in issue.
8. In the event of an adverse character finding being made by the Tribunal, it will be necessary to consider the available discretionary factors to determine whether in light of his character, related conduct and the primary and other considerations detailed in Ministerial Direction 21 (“the Direction”) the discretion should or should not be exercised in his favour.
chronology of relevant events
9. The Respondent in a Statement of Facts and Contentions set forth the significant happenings not in dispute relevant to this matter. With some few modifications the chronology is as follows:
1995, 25 May Visa Applicant first enters Australia on a Tourist (Short Stay) (subclass 676) visa
1995, 20 July Visa Applicant granted Yugoslav (Temporary) visa
1995, 9 October Visa Applicant departs Australia re-entering on 8 December
1995, 5 October Visa Applicant’s Yugoslav visa renewed
1996, 11 July Yugoslav visa further renewed
1997, 7 February Visa Applicant convicted of “Criminal Damage” and “Unlawful Assault”
1997, 31 July Visa Applicant’s Yugoslav visa ceases and he becomes an unlawful non-citizen
1998, 2 JuneVisa Applicant granted a bridging visa in association with his application for a protection visa
1998, 10 June Protection visa application refused
1999, 31 August Refugee Review Tribunal affirms refusal of protection visa application
1999, 28 September Bridging visa ends
2001, 16 March Visa Applicant detained
2001, 21 March Visa Applicant granted a bridging visa, extended on 26 March, 30 March, 2 May, 9 May valid until 22 May
2001, 22 May Visa Applicant becomes an unlawful non-citizen
2001, 15 June Visa Applicant detained
2001, 22 July Visa Applicant escapes from immigration detention
2001, 8 August Visa Applicant convicted of assault occasioning bodily harm involving the Applicant
2002, 12 November Visa Applicant provides false documentation to Respondent’s compliance officers
2002, 23 November Visa Applicant leaves Australia
2003, 21 December Visa Applicant and Applicant marry
2003, 29 December Spouse (provisional) subclass 309 visa lodged
2004, 21 June Visa application refused by Respondent
relevant legislation and ministerial direction
10. The relevant statutory provisions are:
“MIGRATION ACT 1958
SECT 234
False papers etc.
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
SECT 235
Offences in relation to work
(1) If:
(a) the temporary visa held by a non-citizen is subject to a prescribed condition restricting the work that the non-citizen may do in Australia; and
(b) the non-citizen contravenes that condition;
the non-citizen commits an offence against this section.
…
(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.
…
SECT 501 Refusal or cancellation of visa on character grounds
…
(1)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.
…
(6)For the purposes of this section a person does not pass the character test if:
…
(c) having regard to either of 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”
11. The words “good character”” as used in section 501 of the Act “should be taken to be used in their ordinary sense namely a reference to the enduring moral qualities of a person and not to the good standing fame or repute of that person in the community. The former is an objective assessment apt to be proved as fact where the latter is a review of subjective public opinion” (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94).
12. It is not necessary for there to be a continuance of the incidence of general conduct. It is sufficient if incidences of general conduct be displayed but once or twice, thereby laying “the character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).
13. The Direction sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test. One factor to be taken into account as here relevant is whether the Visa Applicant has shown contempt or disregard for the law including Immigration Law (para 1.9(a) (b)). Thus paragraph 1.9(b) requires consideration to be given to :
“Whether the non-citizen has in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.”
14. If the Tribunal is not satisfied that the Visa Applicant passes the character test the issue for determination, as already indicated above, is whether the decision of the Respondent’s delegate be affirmed or set aside by exercise of the residual discretion under section 501(1) of the Act. In making this determination the Tribunal is to have regard to the above Direction and as here relevant to the following provisions:
“PART 2 – EXERCISING THE DISCRETION
2.1If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
…
2.6…
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
...
2.7It is the Government’s view that the sentence imposed for a crime is an indication of the seriousness of the offender’s conduct against the community. Decision-makers should have due regard to the Government’s view in this respect, including:
a)the extent of the person’s criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
b)the repugnance of the crime:
-crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a) …
(b) a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
c.general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may prevent others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
Expectations of the Australian community
2.12The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government’s view in this respect.”
15. The three primary considerations that must be taken into account by decision-makers are the protection of the Australian community and members of it, the expectations of the Australian community and in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
16. With reference to the protection of the Australian community, the Direction provides that the factors relevant to an assessment of the level of risk to the community of a non-citizen entering or continuing their stay include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as with the character issue, makes specific reference to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.
17. The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648; Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766 and McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805). It is important to note the emphasis placed on “the observance of truth”. It is conceivable that false documents and information may be provided without an applicant being aware of the inaccuracy, lack of correctness or falsity. It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information to determine whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage.
“Other considerations
2.17 When considering the issue of visa refusal or cancellation other matters although not primary considerations may be relevant. It is the Governments view that where relevant it is appropriate that these matters be taken into account but that generally they be given less individual weight then that given to the primary considerations. These other considerations may include:
(a) the extent of disruption to the non-citizens family, business and other ties to the Australian community;
…
(b) genuine marriage to or de facto or interdependent relationship with an Australian citizen, permanent resident or eligible New Zealand children
· in assessing the compassionate claims of the Australian partner…decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
…
(h) any evidence of rehabilitation and any recent good conduct.
…”
factual situation and findings of fact
18. The Visa Applicant was born in Bitola, Macedonia on 16 April 1972 and attended school there; he underwent military service from September 1991 to December 1991. He is one of two children, his brother Igor being a permanent resident of Australia. His parents have recently left Macedonia and settled in Australia. The Visa Applicant is the sole remaining member of his immediate family now living in Macedonia. He is presently unemployed and has been so since leaving Australia in November 2002.
19. The Visa Applicant first entered Australia in May 1995 and then stayed for about five months. He returned two months later and remained on a temporary visa until July 1997 when it expired, thereafter until June 1998 being in Australia unlawfully. He obtained a bridging visa in June 1998, this at the time of his applying for a protection visa. The protection visa was refused at first instance in June 1998 and on appeal to the Refugee Review Tribunal in August 1999, after which he remained again unlawfully in Australia until he was detained in March 2001 and granted another bridging visa which with renewals enabled him to remain until May 2001. He then again became an unlawful non-citizen but was detained in June 2001, escaping from detention the following month and remaining so until November 2002 when he was re-detained after seeking to mislead compliance officers of the Respondent by providing false documentation. He was removed from Australia within two weeks thereafter.
20. The Applicant was born in Beijing/China on 26 February 1985. She first entered Australia at the age of 14 years after having been left by her parents with her grandparents. The parents themselves individually migrated to Australia. The Applicant became an Australian citizen on 9 July 2003. Her brother and her parents, now divorced and each having remarried, are residing permanently in Australia. Shortly after her arrival the Applicant, consequent upon a disagreement with her father, was placed in a refuge where she came under the attention of the case workers, there employed, more particularly a Ms Jespersen. The Applicant met the Visa Applicant when she was about 16 years of age and it is said due to his influence and concern, attended school and obtained a fluency in English.
21. The Visa Applicant, following his initial detention was released as above mentioned on a bridging visa, his brother going guarantor in an amount of $10,000. He remained unlawfully in Australia at the expiration of the visa period, this seemingly resulting in the forfeiture of the bond monies. The Visa Applicant says that shortly after escaping from detention he realised the seriousness of his situation and how “stupid” he had been. During the time he had been in detention, conflict had started to arise in Macedonia and whilst the Visa Applicant’s brother and the Applicant were supportive of him and constantly visited him whilst he was in detention, “there was a chance” he said and with others he escaped. He was at large for more than one year maintaining constant contact with the Applicant. In August 2002 he was told by the Applicant that she was pregnant with his child.
22. It was then that the Applicant and Visa Applicant began to live together, the Visa Applicant obtaining employment making timber floors. This work continued until he was again detained and then deported. The Applicant under pressure from her father underwent an abortion at four months, the week after the Visa Applicant was removed from Australia.
23. The Applicant thereafter, whilst in Australia, made contact with the Visa Applicant by telephone each and every day. In March 2003 she travelled to Macedonia and met the Visa Applicant’s family. They planned to marry but were unable to do so without the Applicant having an original birth certificate. She returned to Australia in June 2003, travelled to China in October 2003 to obtain the original birth certificate and then on to Macedonia, the couple being married there on 21 December 2003 and having their wedding celebration on 31 January 2004.
24. The Applicant remained in Macedonia living with her husband and his parents returning to Australia in October 2004 and giving birth in Sydney to a daughter on 3 December 2004. The Visa Applicant was stressed at not being present at the time of the birth but was kept informed of progress and the delivery.
25. The Visa Applicant’s parents having received their Australian permanent resident visas, arrived in this country in December 2004. The Visa Applicant is the sole remaining member of his immediate family still living in Macedonia.
criminal history of the visa Applicant
26. The offences of criminal damage and unlawful assault were committed in 1996, the convictions recorded in February 1997. The Visa Applicant was convicted and fined an aggregate of $1500. In respect of these offences, and there is no evidence to the contrary, the Visa Applicant says:
“…
1996, about an half year time after the second time I arrived Australian, I went out with a friend on a weekend night, during the time I was talking to the security from the Club, a Jeep stopped by and talked rude to us, I got upset through the argument and plus I was in a bad mood already because I couldn’t get in to the club, I splashed on the window of the Jeep without thinking and left. I have been to the Court and agreed to pay $1500 AUD, since I changed my address and forgot to give the Court a notice, I didn’t receive the bill and I didn’t pay for it.”
27. The offence of assault occasioning actual bodily harm involved the Applicant. The Visa Applicant was convicted and fined $750. In respect of this offence, and again there is no evidence to the contrary, the Visa Applicant says:
“2001, not long after I got released from the Immigration Detention Centre I had my first and the worst fight with my wife Bibi [the Applicant]. I can’t remember what made arguments starts, but I do remember that we were both so upset and we started to push each other on the shoulder, I tried not to do anything stupid till Bibi scratched me on my face by accident, I finally lost my control. Even now sometimes when I think about it, I just can’t believe what I have done, I guess it was the pressure from facing the fact that I have to make a choice between leave Bibi behind or continue to stay in Australia illegally drove me crazy. I couldn’t attend the Court because by the time I was on the run from Immigration.”
28. The Applicant herself said when giving evidence that “we had fight in June 2001. The argument was in the middle of the night, I raised my voice and a neighbour rang the police. I pushed him, he pushed me, he had blood on his face, the police took a statement.” According to Ms Anette Jespersen, the case worker, the Applicant came to the refuge after the incident “she was accepting responsibility for what happened and feeling really bad. She did not come to the refuge because of fear of her husband.”
29. As to his escape from the detention centre, the Visa Applicant says:
“To the second time I got caught, I already lost my hope to have freedom again, Bibi went to visit me almost every day. She’s doesn’t drive, she caught train and walked to see me; she doesn’t have a job, but after I told her that I don’t like the food there, she tried to bring me all kinds of food that I like, I knew she has to save these money really hard from the benefit she gets. I don’t know how I can ever pay all this back to her…I don’t know what did I do to deserve so much love like that? That’s why when a chance comes, I escaped. I remember that I was having a smoke before I going to bed, some Asian guy came to me and asked me if I wanted to go with them, I wasn’t sure what he was talking about, but soon I understood that’s my only way out of there. I didn’t have time to think anything else or pick up some of my stuff, I just went. ‘I did it!’ ”
30. The Visa Applicant used false identity documents at the time he was taken into detention. He says in this regard that:
“End of August 2002, Bibi was pregnant, I was so happy when she told me on the phone, but obviously we have to make a choice again. I was 30 years old, I wanted to build a little family of my own and have kids, but how am I going to have all these when I can’t even tell people who I am?”
31. It was in these circumstances that the Visa Applicant sought to mislead the compliance officers as to his identity.
character
32. The adverse conduct of the Visa Applicant earlier detailed in these reasons is not in dispute. The only issue relates to the nature of the conduct that resulted in the convictions and more particularly the events involving the Applicant. The overstaying of the visas and working without permission, the escape from detention and the use of false identification material are each admitted. The Visa Applicant does say and the Applicant supports him in this regard, that he was and is sorry for his misconduct. He contends that the overstaying and working were dictated by his concerns for the Applicant and the relationship then existing between them. The escape and use of false documentation, “unwise and stupid” conduct as each was, were each also motivated by his concern for the Applicant.
33. It is maintained on behalf of the Respondent, that the Visa Applicant is not of good character. This having regard to his past and present conduct. The escape from Villawood is said to constitute a breach of section 197A of the Migration Act 1958. The attempt to mislead by the use of false documents is said to constitute a breach of section 234 of the Act. Working in Australia without permission is said to be a breach of section 235 of the Act. There are also the criminal convictions.
34. The misbehaviour of the Visa Applicant whilst in some respects understandable is not excusable. It is of a serious nature and indicates an unacceptable attitude than had by the Visa Applicant to his civic responsibilities, let alone breaches of the Migration legislation. Even be it, the most recent behaviour was more than two years ago and the Visa Applicant has expressed remorse, the Tribunal can not do otherwise than find that the criminal and general conduct of the Visa Applicant was such as can only lead the Tribunal to be satisfied that he is within the meaning of the Act, a person not of good character.
recent conduct and longstanding character assessment
35. I have earlier indicated in these reasons that on account of his adverse conduct referrable to his escape from detention, his use of false identification documents, his remaining in Australia without a valid visa and his criminal convictions, that a finding of his being not of good character is appropriate.
36. However, in the context of exercising the available discretion and the considerations thereby relevant, it is necessary to assess the present standing of the Visa Applicant as it reflects upon the likelihood of his re-offending, the protection of the Australian community and the expectations of such community.
37. Being aware of his “criminal record and unlawful migration record” witnesses (Exhibit A and D) deposed to the honesty of the Visa Applicant and his caring for, being polite to and displaying respect for others. He is said to be a responsible and mature person. A Macedonian parish priest in Sydney speaks of him as “a most responsible and honest individual” a “genuine well respected member of the community”. The Applicant’s mother gives her support to her son-in-law.
38. Ms Anette Jespersen, a case manager at Caretakers Cottage, a crisis refuge, came to know the Applicant when:
“…She was placed at the refuge by the Department of Community Services at the age of 15. The relationship between Bibi [the Applicant] and her father had broken down and Bibi was unable to return to his care…
When I met Bibi she was in a relationship with Billy [the Visa Applicant]. He would come to the refuge to collect Bibi and this is when I first met Billy.
Over the years I have met Billy on many occasions. I can verify he is a person of good character. Billy’s trouble with the Australian Law has been circumstantial. I am aware of the difficulties they have had with immigration and the difficulties they are experiencing by this separation. This is a genuine relationship and marriage between Billy and Bibi. I can only support Billy’s application for migration to Australia and with my background in working with youth in crisis I fully support any child living with their parents…”
39. In her evidence Ms Jespersen said that the Visa Applicant has been “very much a role model for his wife, encouraging her to go to school. He has been a steadying thing in her life…he was very concerned about her, initially telling her to go back to her father and go back to school…He is the one person who has had an amazing impact on her.” It is Ms Jespersen’s opinion that the Applicant would be in a much better position if her husband could come to Australia and live with his wife. Her awareness of his various offences has not changed her assessment of him.
40. The Applicant herself casts the Visa Applicant in a role somewhat different to that of the more traditional husband when she said in her evidence recognising the age difference between them that she:
“Feels like a father’s love, I never had it from my father, he left me when I was 4 and half years of age. My husband tries to tell me how to forgive, he teaches me a lot, he is a father, brother not just a husband. I feel I can depend on him. Many times I felt there is nothing in this world that my husband makes me feel people care for me.”
41. As has been mentioned the Visa Applicant worked, be it unlawfully, when in Australia. Employers or prospective employers have provided references for him (Exhibits G, H and J). One employer says that:
“He discharged his duties well…with good humour and due diligence.”
42. This past employer is able to offer the Visa Applicant a full-time position as a painter/handyman. Other prospective employers speak of the Visa Applicant being “eager, friendly and always willing to assist”, “having a positive attitude towards work”, trusting him “to carry out tasks capably and competently without supervision”.
43. The various matters set forth above reflect favourably upon the present character of the Visa Applicant but more particularly as they reflect upon the likelihood of his re-offending and the interests of the Australian community both in a protection and expectations sense. I do not consider that the Visa Applicant presents an unacceptable risk of recidivism and do not consider that the Australian community is at risk by his being present in it. In all of the circumstances of this matter, I do not consider that the Australian community would expect the Visa Applicant to be deprived of the opportunity of residing with his wife and daughter. The evidence before the Tribunal enables it to say that the Visa Applicant if allowed to enter Australia and reside in the community will make a worthwhile contribution to it.
contrition
44. The Visa Applicant has expressed an awareness of the gravity of his past conduct. He says that he is genuinely sorry for the ways in which he behaved and asks for understanding. In a statement dated 5 May 2004 he writes;
“I am 32 years old now, think back for the things I have done, I can only shake my head and laughing at myself, how many stupid things I did? Because I was younger I done things without go through my brain; because my lack of knowledge of the Australian law, I have made too many mistakes, I have no intention to harm anybody or break the laws! I cannot change the fact what has happened already, I can only show to everyone with my action that I am much more mature than before and I will do things differently. I don’t expect the Australian Government will forgive me, but I am glade that I still have Bibi by my side. Because of her, I beg you to give me another chance to go back to Australia. I am prepared to take all the consequences for what I have done, but I just don’t want to see Bibi is being punished with me. As everyone knows Macedonia isn’t a wealthy country, I can’t find a job to earn anything to give Bibi what a girl wants and she’s living here without knowing the language; having no friends, no family, except me, I guess it must be very difficult for her even she didn’t complain to me…please be so kind to allow me to go back to Australia, I will prove to you that I can be a good resident who obeys the law, hard working and honest, I really don’t want to lose this baby, this is already the third one we have, as I said Bibi had an abortion for the first one and we lost the second one in a miscarriage …”
best interests of the child
45. The Applicant is an Australian citizen as is her daughter. She has since the age of 14 years lived in this country, attended school and become fluent in the learned English language. She is literate and intelligent, these are traits that she can pass on to her daughter if circumstances allow her to do so. The Visa Applicant is well regarded and there is work available for him in Australia but not in Macedonia.
46. The child’s maternal and paternal grandparents live in Australia as does her paternal uncle and his family.
47. It is clearly in the best interests of the daughter that the three of them, that is mother, father and daughter be able to live together in Australia.
hardship to the Applicant
48. The Applicant with her newly born daughter is without her husband. She lived with him in Macedonia during much of 2004, but not speaking the language and having little by way of familiarity with the customs of that country as well as being of Asian descent, found the way of her life there not comfortable. With her parents-in-law now in Australia she would, if required to live in Macedonia, have very little support apart from that of her husband.
49. It is true that the Applicant married the Visa Applicant and conceived her child (but prior to receiving the notice of refusal) well knowing that her husband may not be able to live in Australia. But their relationship has been existent for some years and it has survived his being detained and then having to depart Australia.
50. If the Applicant is required to leave Australia, where she has lived in difficult circumstances since her arrival at the age of 14 and live in Macedonia, I am satisfied that she will experience serious hardship including that of a financial nature. It is also uncertain as to whether the Applicant would be able to obtain Macedonian residency let alone citizenship.
51. In Australia the Applicant and the Visa Applicant would have the support of the Visa Applicant’s brother and his family as well now that of the Visa Applicant’s parents.
the exercise of the available discretion
52. It is maintained on behalf of the Respondent that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community and are considered to be very serious conduct. There is no issue as to this being so. The acts of violence and the circumstances in which they were committed have been earlier identified in these reasons. As to the assault occasioning actual bodily harm, this act was committed upon the Applicant, she herself accepting some measure of responsibility for the altercation. The earlier incident was not of such a nature as to put the Australian community at risk. His escape from immigration detention is serious. The Visa Applicant acted contrary to the Migration Act and was rightfully detained. However, the circumstances existing at the time and his real concern for the welfare of the Applicant, are also to be taken into consideration.
53. I am satisfied that the Visa Applicant is unlikely to re-offend in the future even be it his conduct in the past was of a serious nature. As already mentioned having in mind the circumstances in which the conduct occurred, I am satisfied that the risk of recidivism is not significant. The conduct of the Visa Applicant was peculiar to its own circumstances and the withholding of a visa would not be likely to prevent or discourage similar conduct in the future.
54. In the circumstances of this matter I am satisfied that the protection of the Australian community does not require a visa refusal.
55. Nor am I satisfied that even be it the Visa Applicant’s conduct in the past does demonstrate disrespect for the criminal and migration laws of Australia, there is the likelihood of his so conducting himself in the future.
56. The interests of the daughter of the Applicant and Visa Applicant have been earlier identified. This is a primary consideration and in my opinion outweighs concerns, limited as they may be, referable to protection and expectations of the Australian community.
57. There are other considerations that warrant attention, the genuineness of the marriage between the Applicant and the Visa Applicant, the degree of hardship that would be experienced by the Applicant and to an extent other members of their families. The Applicant will experience serious hardship if a visa not be granted to her husband. She would be required to relocate to live with her husband in Macedonia; where she would be in a society that is unfamiliar to her, where she does not know the language and where her husband is on present indications unlikely to be able to earn an income sufficient to support himself let alone his wife and daughter. The family of the Visa Applicant are in Australia. Indeed the Applicant’s mother and father to the extent that she has contact with them are also in Australia. Certainly so far as the former are concerned a degree of hardship would be experienced by them.
58. I am satisfied that the Visa Applicant realises the error of his ways, genuinely expresses regret and sorry for his past conduct. I am satisfied with the support of the Applicant he will be able to establish himself in Australia, obtain employment and provide appropriate comfort and assistance to his wife and daughter.
59. In all the circumstances of this matter I am satisfied that on balance the relevant primary considerations and the other considerations weigh in favour of the Visa Applicant being granted a visa.
60. Accordingly the decision under review is set aside. The application is remitted to the Respondent with a direction that the available discretion be exercised in favour of the Visa Applicant.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: Neil Glaser
AssociateDate/s of Hearing 11 November 2004, 17 December 2004
Date of Decision 20 January 2005
Applicant Self-represented
Solicitor for the Respondent Mr A Chand
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