Veliu and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1247
•11 August 2017
Veliu and Minister for Immigration and Border Protection (Migration) [2017] AATA 1247 (11 August 2017)
Division:GENERAL DIVISION
File Number: 2016/4595
Re:Fatmira Veliu
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:11 August 2017
Place:Melbourne
The decision under review is affirmed.
........................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – visa refusal – application for partner visa – past and present general conduct – use of fraudulent identity – provision of false and misleading information to immigration authorities – failure to pass character test – discretion to refuse visa application enlivened – decision affirmed
Legislation
Migration Act 1958 (Cth); ss 195A, 197C, 198, 234, 499(2A), 500(6L), 501(1), 501(6)(d)(i), 501K
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)Cases
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149; 112 ALD 10 Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Li v Minister for Immigration and Citizenship [2008] AATA 147
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 44Secondary Materials
AAT Guideline for Persons Giving Expert and Opinion Evidence dated 30 June 2015
Department of Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA dated 22 December 2014
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
11 August 2017
REASONS FOR DECISION
Mrs Fatmira Veliu seeks review of a decision by a delegate of the Minister for Immigration and Border Protection (Minister), to refuse to grant her husband, Mr Adil Veliu, a Partner (Provisional) (Class UF) Visa (Partner Visa), under section 501(1) of the Migration Act 1958 (the Act). The basis of the Minister’s decision was that Mr Veliu did not pass the character test as a result of his past and present general conduct.
For the reasons that follow, I have decided to affirm the decision under review.
BACKGROUND
Mr Adil Veliu was born in Albania on 2 May 1954 and is 63 years of age. He first visited Australia in 1991 under his real name and stayed for approximately nine months.[1] He returned to Australia in 1994 under a false passport in the name of Pellumb Tafek Haxhiu, date of birth 18 March 1952 (the fraudulent identity). Mr Veliu remained in Australia for almost 17 years until October 2011, before returning to Albania where he has since resided. His immigration history in Australia encompasses numerous visa requests, using both the fraudulent identity and his real identity. Key aspects of Mr and Mrs Veliu’s immigration and family history since 1994 are summarised from the G-documents and Supplementary G-documents as follows:
[1] G-Documents (Exhibit R1), p.217.
(a)19 November 1994: Mr Veliu arrives in Australia using a false passport and the fraudulent identity. He claims to have been separated from his wife at this time, who remained in Albania with their two children;
(b)October-November 1995: Less than a year after arriving in Australia, Mr Veliu married Ms Elica Talevska on 21 October 1995 under the fraudulent identity.[2] As an Australian citizen, Ms Talevska sponsored Mr Veliu’s combined application for a Partner (Temporary) (Class UK) (Subclass 820) Visa and a Partner (Residence) (Class AS) (Subclass 801) Visa in November 1995. This application was refused by the Department and the decision was affirmed by the Migration Review Tribunal (MRT). Mr Veliu’s applications for judicial review and Ministerial intervention, both made under the fraudulent identity, were refused;[3]
[2] Supplementary G-documents (Exhibit R2), p.176.
[3] Exhibit R1, pp.171-175.
(c)February 1996. Mrs Fatmira Veliu and her two minor children (sons Fatjon and Erald) arrive in Australia on a Visitor Visa.
(d)11 October 1997. Mrs Fatmira Veliu marries Mr Yusuf Balla, an Australian citizen.
(e)3 October 2008. Mrs Fatmira Veliu is granted an Aged Parent Visa affording her permanent resident status.[4] The application was sponsored by her son Erald, an Australian citizen;
[4] Exhibit R2, pp.216-217.
(f)1 June 2009. Almost 15 years after arriving in Australia, Mr Veliu lodges a Bridging Visa application in his real name for the first time;[5]
[5] Exhibit R2, p.26.
(g)21 May 2010. Mrs Fatmira Veliu’s marriage to Mr Balla ends in divorce;[6]
[6] Exhibit R2, p.177.
(h)26 July 2011. Mr Veliu obtains a Divorce Order from the Federal Magistrates Court dissolving his marriage to Ms Talevska (under the fraudulent identity);[7]
[7] Exhibit R2, p.176.
(i)1 September 2011. Mrs Fatmira Veliu re-marries Mr Veliu in Australia,[8] seven weeks before the expiration of Mr Veliu’s Bridging Visa on 22 October 2011. Mr Veliu had earlier requested Ministerial intervention to remain in Australia,[9] which was denied.[10]
[8] Exhibit R2, p.178.
[9] Exhibit R1, pp.171-172.
[10] Exhibit R1, pp.173-175.
(j)20 October 2011. Mr Veliu departs Australia for Albania.
(k)21 October 2011: Mrs Fatmira Veliu lodges an application to sponsor Mr Veliu’s migration to Australia.[11] The application was refused by a delegate of the Minister on 19 June 2012;[12]
[11] Exhibit R2, pp.167-175.
[12] Exhibit R1, pp.176-182.
(l)8 November 2011: Mr Veliu lodges a combined application (from Albania) for a Partner (Provisional) (Class UF) Visa and a Partner (Migrant) (Class BC) Visa based on his re-marriage to Mrs Fatmira Veliu, in which he lists the fraudulent identity under ‘other names.’[13] This application was refused by a delegate of the Minister on 19 June 2012;[14]
[13] Exhibit R2, pp.124-147.
[14] ibid.
(m)14 January 2013: Mr Veliu lodges another Partner Visa application from Albania using his real identity and with Mrs Veliu as his sponsor.[15] This was refused by a delegate of the Minister on 20 November 2013.[16] The Department contended that the couple were ‘… not in a spouse relationship with the emotional involvement and mutual support as would be expected from a couple in a genuine and ongoing relationship.’ This decision was overturned by the MRT on 24 March 2015.The MRT found that the marriage was valid for the purposes of the Act and remitted the visa application to the Minister ‘… to consider the remaining criteria for a Subclass 309 (Partner) (Provisional) Visa.’[17] The application was subsequently referred to the Visa Applicant Character Consideration Unit (VACCU) for consideration;
[15] Exhibit R1, pp.65-87.
[16] Exhibit R1, pp.183-190.
[17] Exhibit R1, pp.191-196.
(n)4 March 2014. Mr Erald Veliu sponsors an application for a Contributory Parent (Migrant) (Class CA) (Subclass 143) Visa for his father.[18] Should the decision under review in these proceedings be affirmed, the effect of section 501F(2) of the Act is that this application and any other pending visa applications for Mr Veliu (except a Protection Visa or other visa specified in the regulations), will be refused by operation of law;
[18] Exhibit R2, pp.179-203.
(o)23 February 2016. The Department sends Mr Veliu’s registered migration agent in Australia, Ms Merushe Asim, a Notice of Intention to Consider Refusal of Mr Veliu’s Partner (Provisional) (Class UF) visa application under section 501(1) of the Act.[19] The Department said it held information suggesting Mr Veliu may not pass the character test under section 501(6)(c)(ii) of the Act in that:
[19] Exhibit R1, pp.119-166.
(c) having regard to either or both of the following:
(i) …;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) …
(p)22 March 2016. Mr Veliu responds to the Notice via Ms Asim;[20]
(q)3 August 2016. After considering Mr Veliu’s response, the Minister refuses Mr Veliu’s visa application;[21] and
(r)31 August 2016. Mr Veliu’s wife, as sponsor of his Partner Visa application, asks the Tribunal to review the Minister’s decision.[22]
4.The hearing was held on 20 June 2017. Mr Veliu gave evidence by phone from Albania with the assistance of an Albanian interpreter and was cross-examined. Mrs Fatmira Veliu and her son Erald attended the hearing, gave evidence, and were cross-examined – in Mrs Veliu’s case, with the assistance of an Albanian interpreter.
[20] Exhibit R1, pp.201-208.
[21] Exhibit R1, pp.51-64.
[22] Exhibit R1, pp.4-12.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act gives the Minister or their delegate the power to refuse to grant a visa, because the applicant is unable to satisfy the Minister that they are able to pass the character test. The Tribunal’s jurisdiction to review such decisions is provided for at section 500(1)(b) of the Act.
The term ‘character test’ is defined at section 501(6) of the Act. A person does not pass the character test if any one of the eleven sets of circumstances detailed in that section applies to them. The Minister has refused Mr Veliu’s visa application under section 501(6)(c)(ii) of the Act, relating to his ‘past and present general conduct.’
DIRECTION No. 65
If a visa applicant does not pass the character test, this enlivens a discretion under section 501(1) of the Act to refuse to grant the visa. Guidance in exercising the discretion is found in Ministerial Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). Section 499(2A) of the Act mandates that the Tribunal must comply with the Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).
Paragraph 6.1 of the Direction sets out the following objectives:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of the Direction provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501… .
The principles referred to in the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7.1(a) of the Direction states that a decision-maker ‘… must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.’ Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
If it is determined that Mr Veliu does not pass the character test, the following primary considerations in paragraph 11(1) of the Direction must be applied to the specific circumstances of his case:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 12(1) of the Direction requires that other considerations to be taken into account, where relevant, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
Paragraph 8(4) of the Direction states that ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’
ISSUES
The issues to be resolved in this case are:
(a)whether Mr Veliu passes the character test set out in section 501(6) of the Act; and
(b)if not, whether the discretion in section 501(1) of the Act to refuse his visa application should be exercised, after applying the considerations at Part B of the Direction to the specific circumstances of his case.
MR VELIU’S CONDUCT
Convictions. There is no evidence that Mr Veliu has any recorded convictions in Australia[23] or Albania.[24] It is not necessary, however, for the purposes of a visa refusal under section 501(1), that the conduct relied upon by the Minister must result in prosecution and/or conviction. The ‘past and present general conduct provision’ provides for a broader view of a person’s character. In that regard, Mr Veliu’s use of a fraudulent identity, despite not resulting in charges or convictions, is relevant in assessing whether he passes the character test.
[23] Exhibit R1, p.167.
[24] Exhibit R1, pp.168-170.
Use of Fraudulent Identity in Australia. In his written and oral statements, and those of his representatives, Mr Veliu concedes the use of the fraudulent identity to enter Australia in 1994.[25] He explains his conduct arose out of ‘desperation’ and being ‘out of work.’[26] He submits that:
‘After I returned to Albania and my relationship with my wife broke down and we separated. It was a very difficult time in Albania as the Communist Regime had been overthrown and it was difficult to find work due to government businesses no longer operating and the whole country was in a state of confusion.
At that time I was homeless, I had no work, no family, war was looming in the Balkans and refugees were starting to enter Albania, people were armed, so I sought refuge in Australia as I did not know any other place to go.
The only place that I had lived beside Albania was Australia and I had relatives there that could support me. I tried several applications for visitor visas to reenter Australia legally but my applications were refused. Hence I knew that I could not re enter Australia using the name Adil Veliu so I obtained identity documents in the name of Pellumb Haxhiu and gained a Business Visa to enter Australia in 1994.
I genuinely believe that my life had no future if I had remained in Albania and chose to come to Australia as I knew that this was a safe country and I could find work to support myself… .’ [27]
[25] Exhibit R1, p.198.
[26] Statement by Mr Adil Veliu dated 8 December 2016.
[27] Exhibit R1, pp.198-200.
In a request for Ministerial intervention dated 26 October 2010, Mr Veliu’s then Migration Agent states:
My client Adil Veliu arrived in Australia in November 1994 on a false passport… . The primary reason for my client was the change of Government and the Political upheaval at the time in Albania and he feared for his life as a non-political resident in Albania and also the economic conditions whereby he was unable to support him and his family. [28]
[28] Exhibit R1, pp.171-172.
In a submission to the Department’s VACCU dated 20 March 2016, Mr Veliu’s then Migration Agent, Ms Asim, writes that he entered Australia on a false passport because:
At that time the Communist regime had broken down in Albania and there was no employment and no seemed no future for Adil Veliu (sic). This was a critical time in his life and unfortunately he made the wrong decision.[29]
[29] Exhibit R1, pp.201-203.
Mr Veliu’s solicitor (Ms Stojanovic) submits that due regard has not been placed on Mr Veliu’s motivation for using a fraudulent identity, which she submits occurred because he ‘… was not thinking clearly and acted out of desperation as a result of his personal circumstances at the time.’[30]
[30] Applicant’s Submissions In Reply dated 13 June 2017, paragraph 11.
At the hearing Mr Levingston, appearing for Mr Veliu, submitted however, that there was no excuse for Mr Veliu’s conduct in using the fraudulent identity for 15 years, which he described as ‘disgraceful’ and ‘… a clear, concerted course of action…’ representing ‘… a clear traversal of the general expectations of the Australian people.’ He described Mr Veliu’s conduct from 1994 until 2009 as ‘… a systematic course of conduct, predicated on a gross deceit.’ But Mr Levingston contends that although Mr Veliu only disclosed his real identity in mid-2009 ‘… when it suited him…’ a transition nevertheless began to occur from that point. He submitted that this initial disclosure represented ‘… a transition from being bad, to a first expression of contrition…’ where Mr Veliu began to ‘… set things right.’ Mr Levingston submitted that prior to that first disclosure, Mr Veliu’s motivation ‘… was all about him…’ reflecting human nature that was ‘… selfish, lazy and feckless.’ But Mr Levingston contends that Mr Veliu’s conduct should be seen in two parts:
(a)The first is his use of a false passport to flee desperate economic circumstances in Albania. Mr Levingston likened the continuing use of a false identity for the next 15 years as akin to ‘… riding the tiger’s back.’ In essence, once on the tiger’s back, Mr Veliu was unwilling, for base, selfish motives to get off until mid-2009. Mr Levingston characterised Mr Veliu’s continuing deception as a self-protective concealment of past dishonesty, which encompassed the procurement of Australian identity documents like a driver’s licence, banks accounts, superannuation accounts and a Tax File Number. Mr Veliu confirmed during his oral evidence that he maintained the fraudulent identity for so long because he ‘… was afraid they’d return me.’ Up until the first disclosure of his real identity in mid-2009, Mr Levingston contends that Mr Veliu’s conduct should be regarded as ‘serious’ and setting in train cascading consequences that created ‘… a whole series of impositions on the Commonwealth.’
(b)But Mr Levingston submits that the second and increasingly persistent aspect of Mr Veliu’s conduct in Australia follows that first disclosure of his real identity in mid-2009. He contends the seeds of that disclosure were likely sewn when Mr Veliu re-connected with his sons at an Albanian Festival in 2000, which ‘… opened a door to a past life…’ that Mr Veliu thought had closed. But at the time Mr Veliu’s former wife Fatmira was married to another man and all the circumstances allowed for was some initial contact between Mr Veliu and his sons. This contact grew in frequency and by 2010, Mr Veliu was regularly visiting his sons. When Mrs Veliu’s marriage to Mr Balla was ending in divorce in 2010, her relationship with Mr Veliu began to be rekindled. Mrs Veliu stated at the hearing that she decided to get back together with Mr Veliu ‘… so the relationship with the whole family could improve and we could be together again.’ Mr Levingston submitted that Mr Veliu started to become a different man following the disclosure of his real identity and if granted a visa, he would secure a job, ‘… be a useful, contributing member of society…’ and never repeat the behaviour for which his conduct has been called into question.
Marriage / Divorce Under Fraudulent Identity. The evidence shows that Mr and Mrs Veliu first met in Albania in 1978 and married on 27 November 1980.[31] Mr Veliu contends he separated from Mrs Veliu and their two children prior to his departure for Australia in 1994. He subsequently married an Australian citizen, Ms Elica Talevska, on 21 October 1995 (using his fraudulent identity). During closing submissions, Mr Levingston submitted that ‘… the marriage to Talevska was possibly bigamous… and never genuine.’ Mr Veliu initially maintained during the hearing that his marriage to Ms Talevska was genuine, but later conceded it was not. His concession at the hearing is consistent with the Decision Record produced by Departmental officials from the Australian Embassy in Belgrade, following an interview with Mr Veliu on 16 May 2012:[32]
‘… the applicant admitted to a few instances of fraud committed in the past, including entering Australia in 1994 under the false identity and his first marriage in Australia being concocted solely to effect a migration outcome for him. The applicant advised that he had never lived with his second wife and that he was residing with his uncle at [address] from 1994 to 2010 when he claims to have moved in with the sponsor.’
[31] Exhibit R1, p.126. A notation on a Spouse Visa application sponsored by Mrs Fatmira Veliu in 2011, states that she married Mr Veliu on “27/11/80” and they were divorced on “11/4/97.
[32] Exhibit 1, p.188.
I find that the marriage Mr Veliu entered into with Ms Talevska under the name Pellumb Haxhiu was not genuine and was for the purpose of securing a favourable migration outcome for him in Australia. This concocted marriage continued until 26 July 2011, when Mr Veliu obtained a Divorce Order from the Federal Magistrates Court, again using his fraudulent identity[33].
[33] Exhibit R2, p.176.
Applicant’s Sumission: Precedent. I have considered the written submissions of Mr Veliu’s solicitor, that in other cases ‘… including drugs and murder…’ the Tribunal decided ‘... not to exercise the discretion to refuse their visa application.’[34] Cases relied upon as comparators are Li,[35] and Lam.[36] In the latter case, the applicant was convicted for possessing heroin and sentenced to nine years imprisonment. I do not accept the comparison that Mr Veliu’s solicitor seeks to make, however, because the decision to refuse Mr Veliu’s visa application was not based on his having a criminal record, but on his past and present general conduct.
[34] Applicant’s Submissions in Reply dated 13 June 2017, paragraphs 15-17.
[35] Re Li v Minister for Immigration and Citizenship [2008] AATA 147.
[36] Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56.
Witness Evidence
References in support of a person whose character has been called into question, can help inform judgements by decision-makers. As Davies J noted in Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425:
If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
I have had regard to the following statements in support of Mr Veliu, noting that none of the authors appeared at the hearing or were cross-examined:
(a)Mayor Dinny Adem, Greater Shepparton City Council.[37] Mayor Adem submits that he has known Mr Veliu for several years and is aware that he used a false passport and fraudulent identity to enter Australia in 1994. He states that ‘I cannot defend, and do not condone Adil’s decision to illegally enter Australia on a false passport, suffice to say, it may have been a decision born out of desperation.’ Mayor Adem describes Mr Veliu as being of good character while in Australia, stating that he was well known in Shepparton under the fraudulent identity Pellumb Haxhiu and ‘… was well liked as he has a very social and interactive nature.’ On the basis of their interactions Mayor Adem describes him as ‘… respectful, honest, and ready to help others… . [A] hardworking family man, of good character, who has no close family remaining in Albania, and would suffer greatly if he was to be denied his family here in Australia.’ During the hearing, I asked Mr Veliu whether he knew Mayor Adem. Mr Veliu replied that he did not know him personally and had only waved to him in passing. I therefore have significant concerns as to whether the reference provided by Mayor Adem is based on his personal knowledge of and interactions with Mr Veliu. On that basis I give it little weight.
(b)Mr Eljam Bardi, Albanian Moslem Society – Shepparton Inc.[38] Mr Bardi is the Imam in Shepparton, ministering to people of the Muslim faith. He attests to knowing Mr Veliu under his fraudulent identity of Pellumb Haxhiu, and to meeting him during attendances at the Mosque and during Albanian festivals in Shepparton and Melbourne each year. He submits that ‘… over the years…’ they have spoken about Mr Veliu’s problems in Albania ‘… and that he came to Australia to find a better life for himself and his family as there was no work, no future in Albania…’. Mr Bardi considers Mr Veliu to be ‘… a good man…’ who has been ‘… highly regarded…’ in the Albanian community and is an ‘… honest person and has never committed any crimes in Australia or overseas.’ He contends that Mr Veliu is ‘… totally dependent on his sons in Australia for financial support… [and] has no close relatives in Albania and cannot work.’ I note an additional Statutory Declaration from Mr Bardi along similar lines,[39] elaborating on Mr Veliu’s regular attendance at the Mosque and assistance with cleaning duties and ‘… administering the Quran to people who also attended.’
(c)Mr Bill Gani, President Australian Albanian Community Association Dandenong.[40] Mr Gani attests to knowing Mr Veliu for over 15 years, describing him as a ‘… very active and trustworthy person with strong family values…’ who was a valued member of their Association. He says that he was sad to ‘… hear Adil is torn away from his family, his two sons, 3 grandchildren and another on the way, and is (sic) loving wife...’. He contends that Mr Veliu has ‘… no family in Albania, no income, and he is being financially looked after by his two boys...’.
(d)Mr Vahid Goga, President Albanian Australian Islamic Society (AAIS).[41] Mr Goga states that he knew Mr Veliu during his 17 years in Australia, and that he was a ‘… registered member…’ of the AAIS, under the name Pellumb Haxhiu. He states that Mr Veliu provided ‘… support and voluntary work at religious and cultural events for the Albanian community…’. Mr Goga submits that Mr Veliu is remorseful for entering Australia on a false passport, but did so because of political upheaval in Albania that left people ‘… without work and income…’ causing him to take ‘… this drastic action.’ He describes the stress caused to Mr Veliu and his family as a result of his immigration problems, stating that despite doing ‘… the right thing…’ by leaving Australia to ‘… apply correctly for a spouse visa…’ it appears that ‘… he will be refused his visa on character grounds.’ He states that Mr Veliu’s sons, Erald and Fatjon, support ‘… their father financially on a daily basis…’ which is causing pressure given they also have to support their mother and own families. I note an additional Statutory Declaration from Mr Goga along similar lines, in which he further elaborates on Mr Veliu’s contribution to fundraising conducted by the AAIS.[42]
(e)Mr Besnik Kutleshi, President of North Sunshine Eagles Football Club.[43] Mr Kutleshi states that Mr Veliu is known to him as a volunteer member of the Club, assisting with cleaning and other activities for approximately three years, contributing approximately 10 hours per week.
[37] Exhibit R1 p.204-5.
[38] Exhibit R1 p.206.
[39] Statutory Declaration of Mr Eljam Bardi dated 25 October 2016.
[40] Exhibit R1 p.207.
[41] Exhibit R1 p.208.
[42] Statutory Declaration by Mr Vahid Goga dated 3 November 2016.
[43] Statutory Declaration by Mr Besnik Kutleshi dated 9 December 2016.
Evidence of Mr Veliu’s family members
In considering references from family members, I am mindful of the fact they often provide the best possible perspective in relation to conduct, which other members of Australian society might consider unacceptable. Care must therefore be taken about the weight placed on references from family members. Key aspects of the evidence from Mr Veliu’s family members follows:
(a)Mrs Fatmira Veliu: Mrs Veliu gave evidence at the hearing with the assistance of an Albanian interpreter and was cross-examined. I have noted Mrs Veliu’s statement dated 12 October 2016, highlighting the difficulties she faces in Australia without her husband.[44] She discusses the burden placed on her son Erald in financial terms and with day-to-day matters like taking her to medical appointments. She said her husband was sorry for what he had done and would not repeat his mistakes. She said her husband’s ‘… visa issues…’ were causing her to be ‘… depressed and have anxiety.’ Under cross-examination, Mrs Veliu related the circumstances of her re-connection with Mr Veliu – initially through his visits with their children and then from 2010, more directly with her. She said that she decided to re-marry him in 2011 ‘… so the relationship with the whole family improved and we could be together… . I had two children with him.’ Mrs Veliu initially stated she ‘… didn’t know…’ the false name her husband used in Australia, but later agreed that she did know of it after her children first got in touch with their father at an Albanian festival in 2000.
(b)Mr Erald Veliu. Mr Erald Veliu provided a Statutory Declaration,[45] gave oral evidence and was cross-examined. He says that he sends his father $400-$500 monthly for living expenses. He highlighted the financial difficulties, as a self-employed person with irregular income, in supporting his own family (wife and three children), his mother who lives with them and his father in Albania. He says his wife is fully occupied caring for their children who are under four years of age, which means that he has to take his mother to medical appointments because of translation requirements. Mr Erald Veliu says his father is sorry for what he has done and if allowed to return to Australia, would be a big help to the family by helping to look after his grandchildren, taking Mrs Fatmira Veliu to appointments and freeing his wife up to work. After a visit to Albania two years ago, Mr Erald Veliu contends his father is ‘nice and healthy’ and could work if allowed to return to Australia.
(c)Mr Fatjon Veliu. Mr Fatjon Veliu’s statement was accepted into evidence,[46] but he did not attend the hearing. In his statement he contends that he is unable to contribute financially to support his father in Albania, or to play a more prominent role in caring for their mother in Australia. This is due to his own family and work circumstances. The burden therefore falls on his younger brother Erald and he is concerned about the toll this is taking on him. He states that what his father did was wrong, but ‘… the past is the past…’ and if his father was permitted to return to Australia, he would ‘… not do this in the future.’
[44] Exhibit A1, p.50.
[45] Exhibit A1, pp.11-12.
[46] Exhibit A1, p.36.
Expert Medical Evidence – Impact on Mrs Fatmira Veliu and Mr Erald Veliu
A letter from Ms Emma Clarris, registered psychologist, was tendered into evidence[47] and Ms Clarris gave evidence at the hearing. I expressed concerns at the commencement of her evidence that her written submission was not compliant with the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence (the AAT Guidelines). My concerns arose because the Letter of Instruction was not provided and the required declaration about impartial assistance to the Tribunal had not been made. Moreover, in response to my questions about the context of Ms Clarris’ interview with Mr Erald Veliu, it was apparent she was not in possession of key facts relating to the nature of the family’s relationship with Mr Veliu since 1994.
[47] Exhibit A1, pp.41-42.
A report by psychologist Mr Zac Stojcevski was also tendered into evidence.[48] Mr Stojcevski did not appear at the hearing. His report also did not conform to the AAT Guidelines. Contrary to the requirement to provide impartial assistance to the Tribunal and not be an advocate for a party to a proceeding, Mr Stojcevski’s report was written ‘… in support of Fatmira Veliu’s application for a visa review for her husband.’. After expressing my concerns about the nature of this expert evidence, Mr Levingston stated he would not be relying on the evidence of either Ms Clarris or Mr Stojcevski. I have therefore afforded their evidence little weight.
[48] Exhibit A1, pp.43-49.
Consideration – Does Mr Veliu Fail the Character Test?
Lander J (Carr and Sundberg JJ concurring) of the Full Court of the Federal Court of Australia explained the nexus between the character test and Parliament’s intent, in Akpata:[49]
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[49] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [105].
The Direction provides for a number of factors to be considered in this regard, such as ‘Whether the person has been involved in activities indicating contempt or disregard for the law… [including but not limited to a]… history of serious breaches of immigration law...’.[50]
[50] Direction No. 65, Annex A, Section 2, Clause 5.2(2)(a)(ii).
The Direction provides further guidance based on Wong at [33]:[51]
As a matter of construction it seems to us that conduct can now be both general and criminal at the same time so that the Minister may take into account both conduct which is criminal conduct and conduct which is general conduct… .The concepts of criminal conduct and general conduct referred to cannot, now, be considered to be mutually exclusive… .
[51] The Direction, Annex A, Section 2, Clause 5(2), referring to Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 (Wong).
The Direction further explains the need to obtain a ‘complete picture’ of a person’s character based on Godley, requiring consideration of a person’s enduring moral qualities:[52]
The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle.
[52] The Direction, Annex A, Section 2, Clause 5(3)-(4), referring to Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 (Godley), per: Lee J at [51].
In order to fail the character test, the Direction states it is not necessary for a person to ‘… have a recent criminal conviction, or have been involved in recent general conduct which would not indicate that they are not of ‘good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.’[53] In this regard, Mr Young for the Respondent drew my attention to the Full Court’s elaboration in Mujedenovski,[54] of the concept of ‘… past and present general character…’ which requires consideration of the person’s character over the continuum of a period of time:
The last paragraph of the passage just quoted, particularly indicates that the compendious concept “past and present general conduct” requires attention to the character of the visa applicant over the continuum of a period of time. It is not necessary, as the last sentence indicates, that in every circumstance there must be past general bad conduct and present general bad conduct. Past bad conduct may, in certain circumstances, outweigh recent general good conduct so as to compel or favour a conclusion that the person continues to lack moral worth.
[53] The Direction, Annex A, Section 2, Clause 5(4).
[54] Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149; 112 ALD 10, at [47].
My attention was also drawn by Mr Veliu’s solicitor to further extracts from Godley, where Lee J stated:[55]
Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
[55] Godley, at [56].
Mr Veliu’s solicitor submitted as proof of his good character, that he ‘… left Australia voluntarily and tried to make his wrong doings right.’[56] It was further submitted that ‘… He has done one wrong thing… [by] coming to Australia on a fake passport…’ but consideration should also be given to his volunteering efforts and participation in community and religious activities as a demonstration of his moral quality and good character. As evidence of Mr Veliu’s moral quality, his solicitor points to the fact that ‘… Once he came forward about his true identity he obtained his superannuation and tax file number using his true identity.’[57] Mr Young for the Respondent submitted this was not a sign of remorse or moral quality, but a continuation of Mr Veliu’s inherent self-interest – on this occasion to ensure that he retained his superannuation entitlements in his real name.
[56] Exhibit A1, p.1, paragraph 4.
[57] Applicant’s Submissions in Reply dated 13 June 2017, paragraph12.
But notwithstanding the authorities cited by either party, or differing perspectives on how relevant authorities might be interpreted or used as a benchmark to determine Mr Veliu’s case, my consideration of this matter is de novo. It is focussed on the specific circumstances of Mr Veliu’s case, findings of fact arising from the available evidence, and consideration of those findings against the applicable law.
In Mr Veliu’s case the evidence shows his good standing in the local community – albeit based on a false identity used for almost 15 years. On the evidence, it is clear Mr Veliu made more than ‘one mistake’ as he and his solicitor contend. He not only used a fake passport to enter Australia, but continued to use the fraudulent identity for almost 15 years. The last occasion he used it in an immigration document was his application for a Bridging Visa in May 2009.[58] Although I accept he subsequently ‘came forward’ as submitted by his solicitor and used his real name in a subsequent Bridging Visa application dated 1 June 2009[59] and in subsequent visa applications, the evidence shows he used the fraudulent identity after this time. He renewed his licence using the fraudulent identity and held it in that name until 30 June 2014.[60] VicRoads records confirm that no driver’s licence has been issued in his real name. He also obtained a Divorce Order from the Federal Magistrates Court in 2011, dissolving the marriage in the name of his fraudulent identity and Ms Talevska. During the hearing, Mr Veliu conceded he also held other identifying documents in the fraudulent identity, including a Tax File Number, bank and superannuation accounts. Mr Veliu also maintained the fraudulent identity in his dealings with fellow citizens in the community for the vast majority of his stay in Australia.
[58] Exhibit R2, pp.12-13.
[59] Exhibit R2, p.26.
[60] Exhibit R3, VicRoads certified records dated 18 April 2017.
In relation to ‘recent’ or ‘present’ conduct, I have no evidence before me about Mr Veliu’s conduct since leaving Australia and nor is there any onus of proof requiring him to provide such evidence. I simply observe that after using a fraudulent identity for almost 15 of his 17 years in Australia, Mr Veliu left for Albania approximately two years after disclosing his real identity and I am unable to make any reliable conclusions or findings about his conduct after that time. I accept there is no evidence that Mr Veliu has attempted to repeat his immigration misconduct by once again seeking to gain entrance to Australia or any other country using the fraudulent identity.
I have had due regard for the positive things said in support of Mr Veliu by his family and in witness statements, particularly in relation to his volunteering, his valued contribution to the Albanian community, and his expressions of remorse. I acknowledge his evidence, that of his family and the submissions of his representative that if granted a visa, he intends to live a law-abiding life in Australia with his wife and amongst his children and grandchildren.
I am satisfied that Mr Veliu’s conduct for almost 15 years of his 17-year stay in Australia reflects a prolonged, self-serving deceit, which shows a lack of enduring moral quality. Mr Veliu contends that ‘… so many people…’ in Australia ‘… know me for all the right reasons.’ But while the evidence reveals his valued community involvement and standing, the unavoidable fact is that for almost 15 years, that involvement and the reputational endorsement it attracted, was undertaken in a false name. That cannot be regarded, to paraphrase Lee J in Godley, as continuing conduct ‘… according to moral principle.’ Mr Veliu’s prolonged and deceptive conduct in Australia represents a serious, continuing breach of immigration law and is sufficient to outweigh any consideration of good conduct after he started to use his real identity in mid-2009 and beyond. I therefore find that Mr Veliu does not pass the character test. Having made that finding, I must make a supervening determination regarding the discretion granted by section 501(1) of the Act, which requires application of the considerations in Part B of the Direction, to the specific circumstances of his case.
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 11.1.1(1) of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct to date. Two factors are relevant to the specific circumstances of Mr Veliu’s’s case:
(a) – (g) …
(h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
By his own admission, Mr Veliu provided false and misleading information to the Department for almost 15 years. Mr Young for the Respondent contends that Mr Veliu’s repeated use of the fraudulent identity in immigration, judicial and Ministerial intervention applications should be viewed seriously, particularly given that his deceptive conduct secured a prolonged period of residence in Australia. Moreover, Mr Young submits that even though Mr Veliu’s oral evidence confirms he was aware in 1994 that it was wrong to breach Australian immigration laws, he nevertheless continued to do so in a reckless and systematic way. Mr Young contends that Mr Veliu was motivated by inherent self-interest in leaving his wife and children in Albania to start a new life in Australia in 1994. He says Mr Veliu continued to put that self-interest first for almost 15 years of his stay in Australia and there is nothing to indicate he wouldn’t continue to act out of self-interest in the future.
In a written submission, Mr Veliu’s solicitor submits that although he ‘… admits he never should have used fraudulent identity (sic) and is sincerely sorry. …[T]here are more serious issues in Australia such as drugs, murderers and terrorists.’[61] For reasons previously adduced, I do not accept that submission. Mr Veliu says he ‘chose’ to come to Australia using the fraudulent identity, after determining there was no future for him in Albania. In that respect, Australia’s immigration laws were subordinated to Mr Veliu’s choice of a new life here. He then perpetuated a deception for almost 15 years in immigration documents, the courts, and amongst members of his community.
[61] Applicant’s Submissions in Reply dated 13 June 2017, paragraph 18.
Mr Veliu contends that ‘During my time in Australia of approximately 20 years, I have never committed any crimes because I am a person of good integrity.’[62] That contention is at odds with his acknowledgement earlier in the same statement that use of a fraudulent identity is ‘against the law.’ During his oral evidence, Mr Veliu maintained that his conduct was a ‘mistake’ and not a ‘crime.’ This contention is repeated by his representatives in written submissions. For example, reference is made to Mr Veliu making ‘… one mistake and that is the use of a fake passport…’[63] and that he ‘…did not commit any criminal offences during his time in Australia…’[64]. In response to my question at the hearing as to whether he now considered his conduct in Australia to be a crime, Mr Veliu stated:
A crime is when you do a crime. I haven’t done any crimes - this was a mistake.
[62] Exhibit A2, statement by Mr Adil Veliu dated 8 December 2016, paragraph 11.
[63] Exhibit A1, p.1, paragraph 5.
[64] Exhibit A1, p.2, paragraph 7.
Mr Veliu’s expressions of remorse are often couched in these terms, making his contrition far from convincing. His oral evidence and aspects of his written evidence lead me to conclude that he still does not accept his conduct was a prolonged and intentional disregard of Australia’s laws. The fact that he was unable to acknowledge that when asked during the hearing, gives rise to concerns about the extent to which he is truly remorseful. The evidence shows that his conduct was not an isolated ‘mistake,’ nor was it restricted to immigration matters. He engaged in prolonged deceit, designed to conceal his true identity, in order to secure a 17 year stay in Australia. He procured other identity documents in the fraudulent identity, such as a marriage certificate, bank account, tax file number, superannuation account, and a Victorian Driver’s Licence.[65] The evidence also shows he used the fraudulent identity to secure a Divorce Order and in applications for Ministerial and judicial intervention.
[65] Exhibit R3. A certified record from VicRoads dated 18 April 2017 reveals that there is no record of an Adil Veliu born 2 May 1954, but that ‘… Mr Pellumb Haxhiu, born 18 March 1952… was the holder of a Full and Expired Victorian licence number [xxxxxxxx]. Mr Haxhiu’s licence was last current on 30 June 2014.’
Desperation, or a desire to secure more favourable economic circumstances, are not valid reasons to fraudulently circumvent Australia’s immigration laws. Deceit by visa applicants cuts across the efficient operation of these laws. A failure to truthfully complete immigration documents has been viewed seriously by the Tribunal in previous cases, including by Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at [155-156]:
The observance of truth in dealing with officials in migration matters (particularly when 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...
I note Mr Veliu accepts he obtained the fraudulent identity in Albania, which sits uncomfortably with his solicitor’s contention that he ‘… has never committed any breaches in any country other than using a fake passport to enter Ausralia.’[66] While there is no evidence before me that Mr Veliu has been charged with or convicted of any offence in Albania, I note the Criminal Code of the Republic of Albania provides for circumstances where passports, identity cards, or other travel documents are forged, falsified, possessed, provided or used. For example, Article 189 of that Code provides:[67]
[66] Exhibit A1, p.2, paragraph 9.
[67] Legislation Online, Criminal Code of the Republic of Albania 1995 (amended 2015) (English version), accessed 22 June 2017.
Article 189
Falsification of Identity Documents, Passports or Visas
(Amended by Law no. 9188, dated 12.02.2004, Article 5;the part that provides fine as main punishment in addition to imprisonment is abrogated by law no.144, dated 02.05.2013, Article 48)
The falsification or use of falsified identity documents, passports or visas is punishable with imprisonment of from six months to four years.
When this crime is committed in collaboration or more than once or has brought serious consequences, it is punished with imprisonment of from six months to five years. When the falsification is done by a person who has the duty of issuing the identity document, passport or visa, it is punishable with imprisonment of from three to seven years.
Mr Veliu’s conduct may also have breached Albania’s Criminal Code. Under paragraph 11.1.1(1)(i) of the Direction, conduct amounting to fraud, including passport fraud and identity fraud are also offences which may result in criminal prosecution in Australia under the Foreign Passports (Law Enforcement and Security) Act 2005.[68]
[68] See sections 21–22.
Section 234 of the Act makes it an offence to provide false documents or false and misleading information to an officer of the Department, ‘… in connexion with the entry, proposed entry or immigration clearance, of a non-citizen… into Australia or with an application for a visa or a further visa permitting a non-citizen… to remain in Australia...’. The maximum penalty for such an offence is ‘Imprisonment for 10 years or 1,000 penalty units, or both.’
As previously stated, there is no evidence before me that Mr Veliu has any recorded convictions in Australia or in other countries. But the Direction requires that I take account the Australian community’s low tolerance ‘… for visa applicants who have previously engaged in criminal or other serious conduct.’ It is evident from the specific circumstances of Mr Veliu’s case that his immigration and other misconduct is serious. The duration, frequency and cumulative effect of his conduct inform the view that Mr Veliu had very little regard for Australia’s immigration and legal systems while living here. He used a fraudulent identity to enter Australia. He obtained identity documents, married and obtained a divorce order using that fraudulent identity. He made applications for judicial review, multiple visa applications and requested Ministerial intervention following visa refusal decisions – also using that fraudulent identity. In relation to the nature and seriousness of his conduct, that history weighs more heavily on my decision than any credit Mr Veliu might claim for eventually using his real name 15 years after arriving here.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 11.1.2 of the Direction states:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(iii)the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
Mr Veliu’s solicitor contends that if his visa request is approved, there would be ‘… no purpose or reason for him to re-commit…’[69] the conduct that has brought his character into question. She submits that Mr Veliu’s case is not comparable to those where the applicant comes ‘… to Australia with fake passports and then commit serious crimes upon arrival such as terrorism, violence, drug trafficking etc’[70] yet they are allowed to retain their visa. With respect to that submission, the decision under review was not made because Mr Veliu failed the character test as a result of criminal or violent behaviour. The intended comparison has no merit, particularly as each case before the Tribunal is considered de novo.
[69] Exhibit A1, p.2, paragraph 10.
[70] Exhibit A1, p.5, paragraph 20.
I note Mr Veliu asks that his statement dated 1 June 2015 be seen as a ‘… genuine act of contrition…’ apologising for his actions while claiming he ‘… had no counsel to guide…’ him. I do not accept that submission, given Mr Veliu agreed during the hearing that he knew his conduct was illegal in 1994, when he was 40 years of age, yet undertook it anyway. His conduct enabled him to circumvent Australian law and gain prolonged residence for 17 years. Moreover, Mr Veliu contends that he has ‘… paid a high price…’ for his actions in being separated from his family and ‘… continues to suffer with two [visa] refusals.’ I infer from his contention that he considers the application of Australia’s laws, in response to his admittedly illegal conduct, as a punishment imposed upon him.
The risk of harm that arises from a repetition of Mr Veliu’s conduct includes the cost to the Australian community in managing the consequences of a person who intentionally uses a fraudulent identity for almost 15 years. That has not been insignificant and represents a significant opportunity cost in wasted time and taxpayer funds. This cost arises from multiple visa applications, requests for judicial and Ministerial review, a concocted marriage and then a divorce that have all been processed on the basis of his fraudulent identity.
In accordance with the Direction, I must consider information and evidence from independent and authoritative sources on the likelihood of Mr Veliu re-offending. No evidence from independent and authoritative sources about the risk of Mr Veliu repeating his past conduct was relied upon by his legal representatives during the hearing of this matter. As discussed earlier, submissions from psychologists Ms Clarris[71] and Mr Stojcevski[72] were tendered into evidence. These did not relate to Mr Veliu’s risk of repeating his past conduct, but on the impact of visa refusal on Mrs Fatmira Veliu and Mr Erald Veliu respectively. For the reasons previously adduced I have afforded their evidence little weight.
[71] Exhibit A1, pp.41-42.
[72] Exhibit A1, pp.43-49.
Paragraph 11.1.2(3) of the Direction requires that I have regard to any evidence of rehabilitation. There is no specific evidence before me of rehabilitation undertaken by Mr Veliu, beyond the written submission of his solicitor that ‘Mr Veliu has rehabilitated…’[73] and that ‘… there is no repeated behaviour or any worse behaviour anywhere in the world, surely it can be said that the Visa Applicant is a man of good character and chances of recommitting are nil.’[74]
[73] Applicant’s Submissions in Reply dated 13 June 2017, paragraph 11.
[74] Exhibit A1, p.2, paragraph 9.
Under paragraph 11.1.2(3)(b)(iii) of the Direction I must consider the duration of Mr Veliu’s intended stay in Australia. I note that he intends to remain permanently if allowed, which I have taken into consideration in assessing the risk he poses to the Australian people.
In weighing the risk of Mr Veliu re-offending, I have noted in particular the evidence that he not only engaged in fraudulent migration behaviour for almost 15 years, but also fraudulent non-migration behaviour. This is evidenced by his concocted marriage to an Australian citizen – possibly while still married to Mrs Veliu. He also used his fraudulent identity to secure Australian identity documents, a Divorce Order from the Federal Magistrates Court, and in applications for judicial and Ministerial review of administrative decisions.
As the Direction implicitly acknowledges, the Australian community’s expectations include the acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. The Australian community also expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in Australia’s criminal justice system and the rehabilitative opportunities it provides. But in Mr Veliu’s case, I find that the risk of him repeating the conduct for which his character has been called into question is not insignificant, particularly given that self-interest was the prime motivator for his previous and prolonged misconduct. I am not satisfied that Mr Veliu wouldn’t resort to further misconduct in the future if he considered it was to his advantage to do so.
Mindful of the framework principles and after considering the nature and seriousness of Mr Veliu’s conduct, coupled with an assessment of the risk he poses to the Australian community, I find that the primary consideration of protecting the Australian community weighs in favour of refusing his visa application.
Best interests of minor children in Australia
Paragraph 11.2 of the Direction requires that I consider whether refusal of Mr Veliu’s visa application is, or is not, in the best interests of minor children affected by the decision. Paragraph 11.2(4) of the Direction sets out factors that must be considered where relevant. I note Mr Veliu does have three grandchildren in Australia who were born after he left for Albania in 2011. All of his grandchildren have both parents available to them, who continued to fulfil their parental roles after Mr Veliu departed for Albania. There is no evidence to suggest that their parental care is in any way deficient. Mr Veliu’s solicitor contends that if Mr Veliu was allowed to return to Australia he could make a substantial contribution to the care of his grandchildren in particular:
…the level of contribution Mr Veliu could provide to his family if he were with them including but not limited to assisting wife (sic), caring for grandchildren, taking them to and from school when of school age, elevating the pressure (sic) of the sole income provider of the household being his son Erald Veliu and allowing Erald’s wife to obtain employment.[75]
[75] Applicant’s Submissions in Reply dated 13 June 2017, paragraph 24.
I have no reason to doubt that if allowed to return to Australia, Mr Veliu would play a valued role in assisting his wife to help look after their grandchildren, given his intent to reside at his son and daughter-in-law’s home. In terms of the weight I place on this consideration, I note that Mr Veliu’s grandchildren were born after his departure from Australia in 2011 and they have both parents available to them. Moreover, there have been limited periods of meaningful contact between Mr Veliu and his grandchildren. On that basis I am satisfied that the interests of Mr Veliu’s grandchildren weigh somewhat in favour of approving his visa, but do not place significant weight on this consideration.
Expectations of the Australian community
Paragraph 11.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable 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 of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
Although it is ultimately a matter of judgment to determine the expectations of the Australian community, that judgment must be made on the basis of facts established by the evidence, and must be able to be explained. Consistent with the Direction, there is an expectation in the Australian community that non-citizens will respect Australia’s laws. In this regard I note the framework principles within the Direction highlight the Australian community’s low tolerance for visa applicants who engage in criminal or other serious conduct – particularly those who have been participating in, and contributing to, the Australian community for only a short period of time.
In a written submission Mr Veliu’s solicitor contends that ‘It should be taken into account the applicants who enter Australia by boat as a result of leaving their country in order to survive and that such applicants are given rights to apply to remain which generally the public have supported and welcomed.’[76] I do not accept that submission on the basis there is no suggestion Mr Veliu arrived in Australia claiming refugee status, nor is there any evidence that he is owed protection following consideration of any claims he has made in this regard. Mr Veliu states that he ‘chose’ to come to Australia using false documents and a fraudulent identity because he was ‘… out of work…’ and ‘… in a bad economic situation.’ The comparison that Mr Veliu’s solicitor seeks to make has no merit given the specific circumstances of Mr Veliu’s case. Moreover, I consider the Australian people do not support or welcome those who enter the country under a fraudulent identity. In Mr Veliu’s case, he lived in Australia for approximately 17 years and for almost 15 of those, he continued to live a life established under a fraudulent identity. The Australian community would consider that conduct conveys a disrespect of Australia’s laws, judicial and immigration processes.
[76] Applicant’s Submissions in Reply dated 13 June 2017, paragraph 21.
I acknowledge Mr Veliu’s positive contribution to his community by volunteering and involvement with his Mosque and sporting club. But the evidence supports a finding that the Australian community would expect the Australian Government to refuse entry to non-citizens who engage in the sort of prolonged immigration and other misconduct undertaken by Mr Veliu. I therefore find that the primary consideration of expectations of the Australian community, weighs heavily in favour of refusing Mr Veliu’s visa application.
OTHER CONSIDERATIONS
International Non-refoulement obligations
Paragraph 12.1(1) of the Direction requires consideration of whether an obligation exists ‘… not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.’ This consideration does not apply to Mr Veliu who voluntarily departed Australia in 2011 and has lived in Albania since.
Impact on family members
Paragraph 12.2(1) of the Direction states:
Impact of visa refusal on immediate family members in Australia where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Mr Veliu’s two sons and their children are Australian citizens, and his wife is an Australian permanent resident. I accept that the consequences of his continuing inability to return to Australia are causing stress for his family in Australia. After re-kindling her relationship with Mr Veliu in 2010-11, it is understandable that his wife wants him to re-join her. She is also understandably keen to share the burden of dealing with her health concerns.[77] I note in particular that Mrs Veliu was on the elective surgery waiting list as at 5 September 2016 and Dr Myra Mpunga states it would ‘… benefit her a lot to have her husband here to help her around the house and look after her.’[78] I note also her GP Management Plan for Osteoarthritis, a Coronary Angiogram Report, and a letter from Dr Surabhi Aggarwal regarding her past medical history.
[77] Exhibit A1, pp.63-70.
[78] Exhibit A1, p.63.
I have considered Mr Erald Veliu’s contention that he is experiencing financial stress, in part because of deciding to contribute to his father’s living costs in Albania. I note documents from AK INVEST in Albania during 2014-2016, to the effect that Mr Erald Veliu regularly transfers funds to his father.[79] Mr Veliu states if it was not for his son, he believes he ‘… would be on the streets…’. Mr Erald Veliu contends that if allowed to return to Australia, his father would work and make a meaningful financial contribution to household expenses, accompany Mrs Veliu to appointments, help look after his grandchildren and allow Mr Erald Veliu’s wife to work.
[79] Exhibit A1, pp.55-62.
However, I also note Mr Veliu’s evidence that he separated from Mrs Veliu in the early 1990s and left Albania to start a new life for himself in Australia in 1994. There appears to have been no further communication until 2000, when his sons encountered him at an Albanian Festival in Melbourne. It was then a further decade (2010) before Mrs Veliu says she started to see her former husband on a more regular basis and they remarried only weeks before Mr Veliu’s departure from Australia in October 2011. On that basis, Mr Veliu does not appear to have been a meaningful contributor to this family unit since the early 1990’s. The evidence of his likely contribution if allowed to return to Australia, is speculative at best. That is not to say, however, that Mr Veliu couldn’t secure employment at the age of 63. I note in this regard Mr Erald Veliu’s evidence that he would support his father’s living expenses in Australia, even if he was unable to find work. In that eventuality, the financial stress Mr Erald Veliu says would ease if his father could return to Australia, is unlikely to be substantially alleviated.
I note Mr Erald Veliu’s evidence that the family visited Albania approximately two years ago and remain in close contact with Mr Veliu via phone. Mrs Veliu also visited her husband in Albania for a six-month period in 2012, reportedly telling Departmental officials from Belgrade that they lived together in Tirana for a six-month period during that time.[80]
[80] Exhibit R1, p.187.
I acknowledge the desire of the Veliu family to be together in Australia, but on the available facts, I do not accept the submission of Mr Veliu’s solicitor that if his visa application is not granted, ‘… it will be impossible for the family members to go to Albania to visit.’[81] Should Mr Veliu’s visa application be refused, there is no evidence that his family members couldn’t continue to visit him in Albania as they have done in the past. Should she choose to do so, Mrs Veliu also has the option of returning to Albania to live with her husband as she did in 2012. That would of course create a circumstance where both Mr and Mrs Veliu were separated from their grandchildren, but it remains an option nevertheless. On balance, I find that the impact on family members weighs somewhat in favour of approving Mr Veliu’s visa application.
[81] Exhibit A1, p.6.
Impact on victims
Paragraph 12.3(1) of the Direction states:
Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behavior, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;
The Respondent contends there has been a cost in dealing with the consequences of Mr Veliu’s prolonged use of a fraudulent identity, but there is no specific evidence before me in relation to that impact. On that basis I place minimal weight on the impact on victims in deciding this application.
Impact on Australian business interests
Paragraph 12.4(1) of Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Mr Veliu’s 2012 Partner Visa application records that he was employed for approximately six of his 17 years in Australia and was unemployed between 1994-1996, 1999-2006 and from 2008 until his departure for Albania in 2011.[82] There is no evidence before me that Australian business interests will be affected by refusal of his visa application. I therefore place no weight on the impact on Australian business interests in exercising my discretion.
[82] Exhibit R1, p.103.
CONCLUSION
After weighing up all of the evidence and the applicable law, I find that Mr Veliu does not pass the character test as defined at section 501(6) of the Act. In making a supervening determination regarding the discretion granted by section 501(1) of the Act, I have had regard to the relevant considerations in the Direction and applied them to the specific circumstances of Mr Veliu’s case.
By any measure, his conduct during almost 15 years of his 17-year stay in Australia reflects an entrenched pattern of persistent and deliberate deceit. His dishonesty is not relevantly mitigated by his contention that he engaged in this behaviour because of his desperation to flee economic circumstances in Albania. His unwillingness to fully accept the culpability of that conduct does not inspire confidence that he wouldn’t repeat a similar ‘mistake’ if it were in his interests to do so in the future. Mr Veliu’s serious, prolonged and intentional misconduct while residing in Australia, displaces any recent or present conduct since his departure from Australia.
The primary considerations of protecting the Australian community and the expectations of the Australian community, outweigh any other considerations in this matter.
DECISION
It therefore follows that the decision under review is affirmed.
I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
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Associate
Dated: 11 August 2017
Date of hearing: 20 June 2017 Solicitor for the Applicant: Christopher Levingston Christopher Levingston & Associates Advocate for the Applicant: Danijela Stojanovic Stojanovic & Associates Solicitor for the Respondent: Oliver Young Sparke Helmore
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