Tesfay and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 518

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 518

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/991

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GIDAY TESFAY

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date3 June 2005

PlaceMelbourne

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa applicant's visa application not be refused on character grounds.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration – Subclass 309 Spouse (provisional) visa – Ethiopian National – whether visa applicant fails character test – inconsistent evidence – interpretation difficulties – visa applicant 71 years of age – discretion exercised.

Migration Act 1958 – s501

REASONS FOR DECISION

3 June 2005 The Hon C R Wright QC (Deputy President)     

1.      On 4 June 1998 Nera Seyoum Kiflu, the visa applicant, an Ethiopian National applied for a Subclass 309 Spouse (provisional) visa.    He was sponsored by the review applicant Giday Tesfay an Australian citizen, who claimed to be his common law wife.    On 14 July 2004 the visa application was refused on character grounds by the Minister’s delegate at the Nairobi High Commission.    An application to review that decision was lodged with the AAT on 25 August 2004.   The application  to review was heard in Melbourne on 18 and 23 February and 13 April 2005.    At the hearing the applicants were represented by Leul Fesseha, the son of the review applicant, and the respondent was represented by Mr Avinesh Chand (on 18 and 23 February 2005) and by Ms G Bennett (on 13 April 2005).

2.      The decision of the Minister’s delegate is to be found in Exhibit R1 (the “T” documents) pages 6 to 23.   It contains a detailed analysis of a number of inconsistencies, contradictions and inferred untruths, attributed to the visa applicant, the review applicant and their agents during the course of their many dealings with DIMIA (or DIMA as it was previously), and officials at the Australian High Commission in Nairobi.   My role is not to determine whether the delegate was correct in making the findings and drawing the conclusions which he did upon the evidence available to him, but whether or not his determination should stand, based upon the material before me.    This material includes not only the T documents and other documentary material taken into evidence at the hearing, but also the oral evidence of both applicants, Leul Fesseha, and two other witnesses.

3.      One of these witnesses, Bedellu Desta, a social worker of Ethiopian ethnicity provided useful evidence as to comprehension and cultural problems commonly experienced by elderly or poorly educated Ethiopian people, both male and female, in dealing with Australian concepts and questioning techniques, both written and oral.    The difficulties spoken of by Mr Desta became apparent to me as I listened to the evidence of the review applicant who gave viva voce evidence at the hearing, but were less obvious in the case of the visa applicant who gave his evidence by telephone.   Nonetheless it was plain to me that much of what they said during the course of their evidence was sufficient to explain or displace many of the adverse inferences which the delegate had drawn in the course of his deliberations.   Neither of the applicants speaks English and their evidence was taken with the aid of an interpreter, but there were many occasions when their responses seemed disingenuous or non responsive to the questions asked of them.    Without the benefit of Desta’s evidence these responses could have led me to conclude that their evidence was deliberately untruthful, but my overall impression was to the contrary.

4.      I am also left with the impression that a great deal of the confusion which is manifest in the documentary material referred to in the delegate’s decision has resulted from Leul Fesseha’s well intentioned, but flawed, attempts to help the visa applicant advance his case.   Mr Fesseha is the adult son of the review applicant by a previous marriage relationship in which she was involved in Ethopia, but he had not met the visa applicant until well after the lodgement of the visa application now under review.   He assisted with the preparation of the application and, as a combined result of his difficulty in securing accurate information from his mother and his misconception of certain information he had as to the visa applicant, several inaccuracies appeared in the forms supplied to the Department.   At the earlier stages of the protracted enquiries and correspondence dealing with this case his advocacy skills were not as well developed as they are now.

5.      It is true of course that a visa applicant is usually responsible for the information provided by an agent to the Department, but issues of this kind usually arise in the context of a fraudulent agent having provided bogus or fabricated material to the Department to advance his client’s application, and are particularly relevant in respect of character issues, where it can be inferred that the applicant himself has been a party to the attempted deception.    In the present case however I think that Mr Fesseha’s errors were not the consequence of an intention to deceive, either by him or by either of the applicants.

6.      The views which I have just expressed seem to me to be consistent with the experience of DIMIA officer, Pam Fraser, who interviewed the review applicant on 22 May 2000 and prefaced her report on page 129 of Exhibit R1 as follows:

“The sponsor Giday Tesfay attended this office for an interview in relation to her application to sponsor her spouse and provided the following information with the assistance of an interpreter.

I would like to at this point state that this interview was extremely difficult.   Questions had to be asked two or three times to ensure that Giday was answering the correct question.   Her son – Luole? Accompanied her to the interview and requested that he sit in as he was concerned that the interpreter could not interpret properly.   His concerns proved to be correct as on a few occasions when a question was asked a slightly different way Giday gave a completely different answer.   I do not blame the interpreter as given the situation, she was placed under quite a lot of pressure but Luole advised that his mother is uneducated and he found it difficult communicating with her in her own language.”

7.      The Minister’s delegate, in his decision, made reference to the large number of fraudulent family migration applications originating from African sources.    He said:

“Mr Kiflu’s application is one of many lodged by Ethiopian applicants who have wilfully abused the Migration system by falsely applying for visas with misleading statements and bogus documentation.    The type of conduct displayed by Mr Kiflu has been repeated by others in the family caseload at the post in Nairobi.

The current rejection rate for family migration applications emanating from Africa represents one of the highest in the world.   This results in considerable resources being expended in an effort to provide integrity in the program and causes significant delays in determining all applications, including applications from those who have not engaged in any unacceptable conduct.”

I have seen something of this problem myself in recent review applications, but I think it is very necessary to bear in mind that each application must be assessed on its individual merits.    In fairness to the delegate, it must be pointed out that he made his comments in relation to the discretionary issue of general deterrence, and did not make findings adverse to the visa applicant based on these observations.    I now turn to my findings in respect of the chronology of events and contested issues in the present case.

8.      The visa applicant was born in Axu, Tigray, Ethiopia in 1934.   The review applicant was born in the same area of Ethiopia in 1936.   She is now 69 years of age and the visa applicant is 71.

9.      In 1965 the visa applicant entered into a de facto relationship with Belaynesh Asefa Gebru who died during childbirth in 1980.   She bore him four children:

Ermias Nera Seyoum (male)          D.O.B.          12/12/77.

Kaleab Nera Seyoum (male)         D.O.B.           12/12/77

Woinshet Nera Seyoum (female)  D.O.B.           8/1/79

Selam Nera Seyoum (female)      D.O.B.           20/1/80

In his visa application the visa applicant also named as his child:

Abadit Neka Seyoum (female)      D.O.B.           9/10/66

The visa applicant says that Abadit was adopted by him – she was not his biological daughter (Transcript P78).    In the record of his interview on 28 March 2003 he is recorded as saying “I don’t know this name” (Abadit) “I have only 5 kids.   The first 4 from my first wife, the 5^th is from my second.”

This inconsistent evidence is puzzling.   It could be argued that it tends to indicate a false case to assist in the entry into Australia of Abadit under the guise of her being a family member of the applicant.    Such a conclusion may well be reached but for one thing – she is shown on the visa application as having been born in 1966 and being married.   Furthermore she is not shown on the application as being one of the persons seeking to migrate with the applicant.   In these circumstances it is not possible to see any benefit which could accrue from her being accorded a false status by the visa applicant as his daughter.    Consequently I am inclined to the view that his response at the interview was either due to forgetfulness or a momentary aberration.   Indeed on the whole of the evidence, I am prepared to find that Abadit, though not a biological child of the visa applicant was indeed a member of his family as claimed.

10.     The review applicant had been in two previous de facto relationships before meeting and commencing to live in a permanent marriage-like relationship with the visa applicant.    Her first relationship was with Abraham Biyo.     This  commenced in 1956 and ended with his death in 1975.   Three years later she entered into a relationship with Fesseha Gebrehiwot which lasted from 1978 to 1981.  This relationship ended with Gebrehiwot’s death in prison where he had been incarcerated by the Ethiopian military government.   Her son Leul Fesseha was born as a result of this latter union.   Altogether she had four children from the relationship with Abraham Biyo and two from the relationship with Fesseha Gebrehiwot.   One of these children is now deceased, but the remainder, including Leul Fesseha, all reside in Australia at the present time.

11.     In 1981 the review applicant and the visa applicant commenced living together in Ethiopia.  One child, Daniel Nera Seyoum, was born of this union on 16 January 1982.

12.     Leul Fesseha came to Australia in 1992, married and had two children.   He is now an Australian citizen.   In August 1993 his wife died in a train accident and he was left to cope with the upbringing of two very young children.   Leul Fesseha sponsored his mother, the review applicant, to come to Australia to assist him in caring for his children.   At that time she went by the name of Zeneb Berhe Birhane.   She and her son Daniel arrived in Australia on 13 December 1995.   She changed her name to Giday Tesfay on 3 December 1997, pursuant to the Victorian Births Deaths and Marriages Registration Act 1996 and on 12 January 1998 she became an Australian citizen.   Though not fully explained it cannot be suggested that this name change was for any deceptive or improper purpose.

13.     The applicants maintain that a genuine marriage relationship has existed between them since they first commenced cohabitation in 1981 and that it is only the misfortunes of civil war and political unrest in Ethiopia which forced them apart initially, and the needs of Leul’s children which then caused a further extension of their separation.

14.     DIMIA was initially very suspicious of the visa applicant’s claim to include his four children by Belaynesh Asefa Gebrie (Ermias, Kaleab, Woinshet and Selam) together with Daniel in the migration application lodged by him in April 1998.   The reason for this suspicion is set out in the letter from the Principal Migration Officer – Compliance, to the review applicant dated 14 December 2000 (Exhibit R1, page 135-136).   It was suggested in that letter that DNA testing might resolve the problem.   On 10 October 2001 the review applicant wrote to the departmental officer indicating (inter alia) a willingness for the proposed testing to take place.   She also advised that Woinshet and Selam were now to be excluded from the visa application as Woinshet had married and Selam was engaged in university studies.   A month later she also advised that Ermias was to be excluded as he had joined the Ethiopian Air Force.   The DNA testing went ahead in respect of Kaleab and Daniel.   The results showed that the applicants were indeed the parents of Daniel, but the results in respect of Kaleab showed that the visa applicant was not his father.   The inferences arising from the failure of Kaleab’s test are limited.   The two most obvious possible conclusions are that Kaleab and his twin Eermias were born as a result of Belaynesh’s infidelity to the visa applicant or that the visa applicant has deliberately included strangers i.e. non-relatives in his visa application to secure their illegal entry into Australia.    The respondent advances the latter argument and points to the sequence of correspondence as supporting that view.    It was also suggested that it was very strange that the visa applicant had not told the review applicant about his four children by his first wife when they started cohabiting and that she had never met any of those children.

15.     There is some prima facie merit to each of these arguments, but neither of the applicants was questioned in detail about either matter during cross-examination, and their explanations did not seem to me to lack credibility.   The visa applicant claimed he was shocked to find out that Kaleab was not his son and I am inclined to believe him.    It must be conceded that proof that Daniel is their biological child does not necessarily establish that the applicants had an enduring relationship, either before or after the review applicant’s migration to Australia, but that fact does go a long way to establishing their claim to have been in a de facto relationship of some significant duration.

16.     This issue, the enduring nature of the claimed de facto relationship between the applicants, was one of the principal issues pursued by the respondent during the review hearing.   In fact there were really two aspects to this issue.   There does not appear to be very much, if any, dispute that after the applicants met in 1981 they commenced cohabitation and continued in this relationship for several years.   There is however some confusion, and consequent doubt raised, as to how long this mutual period of cohabitation lasted.   The applicants say it lasted until 1991 when, due to a deteriorating political situation in their province which led to persons of the visa applicants tribal allegiances being sought out and assassinated by opponents following a change of government, he left the matrimonial home and went to live in Gamballa.    It was claimed that only males were in serious danger of being killed at the time and, although the visa applicant entertained some fears for his wife and young son, it was considered preferable to leave them at home because of the heightened risk of malarial disease in the area to which he fled.   The applicants said this enforced separation continued until some months before the review applicant left to come to Australia.    They then resumed cohabitation for a period estimated as being between 9 and 12 months.

17.     In the material provided to DIMIA relating to this period of time there was same confusion and contradiction between the applicants and it does not surprise me that such material figured prominently in the delegate’s adverse assessment of the visa applicant’s character. (See Exhibit R1, page 12)

18.     The review applicant said in evidence that her purpose in coming to Australia was just to visit her son (Leul Fesseha) and then return to Ethiopia.

“I know before I left Ethiopia, or before I came to Australia that his wife has passed away, or dead, by the accident.   And at the very beginning when I left Ethiopia I hadn’t had any plan to remain in Australia, just I came to visit and return back.   But once I was here in Australia I saw all the family situation and I changed my mind for the sake of the children.”

She said she discussed leaving to visit Australia with the visa applicant.   Although not specifically stated it may be inferred that he did not object to her doing so.   At the time she actually left to come to Australia they were no longer living together, but they were in contact, as they had been during the earlier period of enforced separation.

The applicants say that since the review applicant settled in Australia she has made two or three return trips to Ethiopia to visit the visa applicant but at her age (she is now 69 years) this is becoming increasingly difficult.    They have also kept in contact by telephone.    In the circumstances I draw no adverse inference from the absence of letters or other written communications.

19.     The applicants have now been physically apart for the greater part of 10 years, but this has been largely due to forces beyond their reasonable control.   The current visa application has been in process since June 1998 - nearly seven years – which in itself largely explains the length of the separation.   Leul Fesseha was highly critical of DIMIA’s part in the delay, but I am in no position to assign blame for the length of time the matter has taken, nor is it any part of my function to do so.   My task is to determine whether the adverse character determination made against the visa applicant should stand.   Before reaching a conclusion on this issue there is one final matter which requires comment.

20.     The visa applicant was interviewed by the Minister’s delegate and another Embassy official on 28 March 2003 at the Australian High Commission in Nairobi.   A transcript or memorandum of this interview appears in Exhibit R1 at pages 178 to 190 inclusive.   During the course of this interview the interviewers took possession of some written instructions provided by Leul Fesseha to the visa applicant for the purposes of the interview.    An English translation of this document is to be found at page 191 of R1.   The visa applicant says that this document was taken from him without his consent during the course of the interview.  He could not remember how many pages it consisted of.   Leul Fesseha gave evidence that the document which he sent to the visa applicant (by fax) contained 3 pages, not 2 as claimed in the memorandum of the interview.    However it should be noted that this document was not sent directly to the visa applicant but to an intermediary who was requested to pass it on to the visa applicant.    The applicant’s case is, in effect that only part of the document has been produced by the Minister’s delegate and his purpose in doing so is to give it an incorrect emphasis so as to put the applicant’s case in a bad light.    This is a very serious allegation, particularly as the visa applicant claims that the interview was conducted in a very hostile manner towards him.   One possibility apparently ignored or overlooked by the applicants is that the intermediary did not receive or did not pass on to the visa applicant the third page of the document.   I do not propose to make a positive finding one way or the other on this matter and would not regard myself as competent to do so without hearing directly from the delegate, the female officer who was also present, and perhaps the interpreter and the intermediary.

21.     For present purposes however, I have no need to resolve this issue because the real point of substance so far as the present review is concerned is whether the visa applicant used, or intended to use, the document in question as a basis for feeding false information to the interviewers.   As to this the first observation to make is that the two pages which have been translated do not necessarily support a claim that they contain fabricated material.    The reference to Daniel’s child is equivocal, especially in the light of Fesseha’s explanation.   The reference to Girmay Bezay Tesfay is suspicious, but if Exhibit A2 is a genuine document (it is claimed that this document comprises the 3 original pages faxed for the visa applicant’s use at the interview) it may well explain the matter in a manner which would not necessarily indicate deceit on the part of the writer.

22.     More importantly however, there was nothing in the interview memorandum or the visa applicant’s evidence to the Tribunal which would indicate that he had read or was aware of what was actually in the faxed document or had falsely adopted anything in the document for the purposes of the interview, believing it not to be the truth.    His recorded answer in the interview memorandum – “Samuel at first instructed me orally, then Samuel wrote the information down”. (which itself is equivocal) is immediately followed by a clear denial that Samuel wrote the information down.    The visa applicant said “No, someone in Australia wrote it down.”   I can see nothing in the interview, the 2 or 3 page document produced during the interview, the visa applicant’s recorded answers thereafter, or his evidence to the Tribunal, which would cause me to believe that he used the material in the document, or intended to use that material to present false material to DIMIA in support of his visa application.

23. I should also add this. It is plain from the evidence that the review applicant is totally illiterate. She is unable to even sign her name and makes her mark with an “X”. I have referred in these reasons to letters which she has written to DIMIA concerning various issues, but it is obvious that these documents have been prepared on her behalf by someone else, presumably her son Leul Fesseha. The visa applicant, whilst not totally illiterate, (he had some form of religious education in his youth) is elderly and unsophisticated. He lives a simple peasant existence in a very poor and undeveloped third world country. Of course, none of these features provides a guarantee that either applicant has been honest and open in their dealings with DIMIA, and the suspicion lingers that Leul Fesseha may have been less than frank in some of his activities to advance the visa applicant’s case, but my overriding concern is to determine whether the suspicion that the visa applicant is not a person of good character can be sustained on the whole of the evidence. In my opinion it cannot. On the balance of probabilities I have concluded that the visa applicant is not a person who is not of good character within the meaning of the Migration Act 1958. I therefore propose to determine that the decision under review is set aside and the visa applicant’s visa application is remitted to the respondent with a direction that the visa application not be refused on character grounds.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed: K L  Miller (Administrative Assistant)

Date/s of Hearing  18,  23 February  and 13 April 2005.2004
Date of Decision  3 June 2005
Representative for the Applicant    Mr Leul Fesseha
Counsel for the Respondent     Mr Avinish Chand and Ms G Bennett
Solicitor for the Respondent     Clayton Utz