Vereneva and Minister for Immigration and Multicultural and Indig Enous Affairs

[2003] AATA 1303

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1303

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/671

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VALENTINA VERENEVA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date19 December 2003

PlaceSydney

Decision The decision under review is set aside. The application is remitted to the Respondent with a direction that the application is not to be refused on the ground that the Visa Applicant does not satisfy the character test.

[Sgd]   R N J Purvis
  Deputy President

CATCHWORDS

IMMIGRATION - child visa - character test – suspected false and misleading statements – Visa Applicant to accompany Belarus Paralympic Team – enters as tourist but on sports visa – mis-stating purpose of visit – alleged false supporting references – no intent to mislead – no character issue established – decision under review set aside.

Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422

Goldie v Minister for Immigration & Multicultural Affairs  (1999) 56 ALD 321

Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244

Re Lachmaiya and Department of Immigration and Ethnic Affairs (AAT 9295, 8 February 1994)

Issa and Minister for Immigration & Multicultural and Indigenous Affairs [2003] AATA 421

REASONS FOR DECISION

19 December 2003        The Hon R N J Purvis Q.C., Deputy President   

the application

1.      On 13 March 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) refused to grant to Mr Oleg Khodor (“the Visa Applicant”) a child visa subclass 101. The Visa Applicant was sponsored by his mother Mrs Valentina Vereneva (“the Review Applicant”). This is an application seeking review of such refusal decision.

2.      The refusal was based upon adverse findings made by the Respondent as to the character of the Visa Applicant. Amongst other matters the following contentions were raised in the Respondent’s reasons for the decision:

“…Mr Khodor has provided false information to the Department in relation to the two visa applications he has made to date:

·     In his sport visitor application of October 2000 he stated that he intended travelling to Australia as a representative of the BBSF to attend the Paralympic Games.

·     In relation to his Child visa application, Mr Khodor provided false information in response to the Notice of Intention to Refuse under s 501.

…

In making this assessment, I must also take into account both good and bad conduct demonstrated by Mr Khodor. There is no evidence before me that Mr Khodor has demonstrated good conduct. To the contrary, Mr Khodor provided false and misleading information in response to the Notice and has again provided false documentation to support his application. He has also failed to acknowledge any wrong-doing. In attempting to rebuff the matters put to him at interview and in the notice, Mr Khodor has further demonstrated that he has engaged in deceit designed to mislead the Department and obtain entry to Australia, and that he is continuing to provide false information in order to obtain the grant of a child visa.

…

As outlined above, Mr Khodor has provided false information in relation to the processing of his temporary visa application lodged in Moscow in 2000 as well as his child visa application lodged in Moscow in March 2002.

In addition, and despite being warned about the seriousness of misleading information to an immigration officer, Mr Khodor continues to provide false information.

In these circumstances, I am far from satisfied that similar conduct is unlikely to be repeated…”

the hearing

3.      At the hearing of the present application the Review Applicant was represented by Mr Yeugen Kyselov, Migration Agent and the Respondent by Mr Greg Peek, Solicitor employed by the Australian Government Solicitor.

4. Admitted into evidence were the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1 to T19 and the following written material tendered on behalf of the Respondent, namely:

Exhibit No	Description
1	Belarus Baseball web-site documents, 1st page
2	European Baseball Confederation web-site documents
CE3	Confidential documents

5.      The Review Applicant and her son, the Visa Applicant each gave oral evidence, the son by telephone from Minsk, Belarus, upon which they were cross-examined.

the issues

6.      The issues for determination at this time by the Tribunal are:

·     whether the Visa Applicant is a person who does not pass the character test (section 501 of the Migration Act 1958 (“the Act”)) because he is not of good character having regard to his past and present general conduct;

·     whether the decision of the Respondent to refuse the grant of the visa to the Visa Applicant should be affirmed.

chronology

7.      A chronology of relevant  events which are not in dispute in the application is as follows:

1945, 27 March                   Review Applicant born in Belarus

1980, 12 May  Visa Applicant born in Belarus

2000, 6 October                   Visa Applicant lodges application for temporary residence visa based on cultural/social class 421 sport

Visa Applicant granted temporary resident visa

2000, 10 November            Review Applicant and Visa Applicant arrive in Australia on tourist and temporary resident visa respectively

2000, 21 November            Visa Applicant departs Australia

2001, 28 January                Review Applicant marries Australian citizen

2002, 25 January                Review Applicant granted permanent residence in Australia

2002, 11 March                   Visa Applicant lodges with Respondent in Moscow an application for a visa based upon child dependency

2002, 3 April  Visa Applicant interviewed in Moscow

2003, 13 March                   Respondent refuses child visa on character grounds

relevant legislation and direction

8. Section 234(1) of the Act provides:

"234 False Papers etc.

(1)A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;

(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or

(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.

…

Penalty:     Imprisonment for 10 years or 1,000 penalty units, or both."

9. The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.

10. By section 501(1) of the Act, the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.

"501 Refusal or cancellation of visa on character grounds

…

(6) For the purposes of this section, a person does not pass the character test if:

…

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character; or

…”

11.     The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs  (1999) 56 ALD 321 at 324 it was said:

"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard of integrity but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry."

12.     I am mindful of statements made by the Tribunal in reasons for decisions in other applications, see: Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs (AAT 9295, 8 February 1994); Issa and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 421.

13. A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction 21 issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.

14.     Direction 21 as here relevant provides:

"PART 1 - APPLICATION OF THE CHARACTER TEST

The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.

1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test…

1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …

1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).

…

Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct

1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

…

Subparagraph 501 (6)(c)(ii) - past and present general conduct

1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

…

(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

…

1.11 General conduct also includes recent good conduct, any good acts of the non-citizen after reprehensible conduct are indications that the non-citizens character may have reformed. Thus both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizens character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed the discretion to refuse or cancel a visa is enlivened and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion.”

factual situation and findings of fact

15.     On the basis of the evidentiary material tendered before the Tribunal the factual situation is to be found briefly as follows.

16.     The Visa Applicant was born in Belarus on 12 May 1980. His mother, the Review Applicant was also born in Belarus, married the Visa Applicant’s father and obtained a divorce from her husband in 1999. She has re-married and is now living in Australia. The Review Applicant has been granted permanent residency.

17.     Whilst living in Belarus and indeed up until recent date the Review Applicant carried on business as a travel agent. Her son, the Visa Applicant lived with her. At the age of 17 years the Visa Applicant started working with handicapped children spending on average part of a day each week with them.  He himself had begun playing baseball when about 13 or 14 years of age and became involved in youth competitions. He did not play professionally but did participate in representative competitions travelling to Moscow and St Petersburg.

18.     In his evidence, which I accept, the Visa Applicant said that on leaving school he obtained entry to the law course at the International Institute of Labour and Social Relations and this led to him having less time for sport. He did however begin to involve himself with and participate in the activities of handicapped children in sport and more particularly baseball. He said that he attended their meetings, explained training requirements and instructed generally “how things are done”. In due course he began to play a part as an assistant trainer under “a basic coach”, to a prospective paralympics team. He was not employed, he received no payment. There was not anything in his labour records to indicate his involvement in the training and coaching. He seemingly did it as an adjunct to his university studies.

19.     In early 2000 the Review Applicant made an application for a visa to enter Australia as a visitor/tourist. The visa was granted in August 2000. The Visa Applicant had an interest in attending the Paralympics to be held in Sydney. Although he was, as already mentioned engaged in assisting as a trainer, he was not employed as such. The relevant softball/baseball association suggested that they would support his travel to Australia with the team. A similar offer was made to other people known to the Visa Applicant but as no financial assistance was available they, according to him, were unable to accept. On 6 October 2000 the Visa Applicant applied for a visa with the specific intent of attending the games. He says that he left the preparation of his application to the secretary of the Belarus’ Committee and the Moscow Paralympic Federation Committee. He merely signed the application. There was not an independent Belarus Paralympic Federation.

20.     The visa so applied for by the Visa Applicant was granted. However, the institute where he was studying programmed a series of exams and tests for the precise time when the games were to be held.. He was unable to change the dates of the exams and was thus prevented from travelling so that he could attend the games.

21.     The visa application signed by the Visa Applicant showed his occupation as “sports coach” and the purpose of his visit and the reason for his seeking a visa as “to take part to sports competitions”. The visa application was accompanied by two letters which read as follows:

“Paralympic Committee of Russia

3 October 2000

To the Embassy of Australia

In the Russian Federation

Mr Patrick McGowan

Paralympic Committee of Russia asks you to include the following representatives into the list of sports delegation (group of supporters) going to Summer Paralympic Games in Sydney, Australia:

1…

2…

3…

4. Khodor Oleg Lvovich

5…

Thank you for your cooperation

Sincerely yours

First Vice-president of PCR

Ryumkin D.N.”

And

“Belarurs Baseball and Softball Federation

To the Embassy of Australia

In the Russian Federation

Mr Patrick McGowan

Belarus Baseball and Softball Federation requests your assistance in processing of visas for public sports instructors working with handicapped children of baseball and softball teams, who will be travelling as part of delegation to the summer Paralympic Games in Sydney, Australia:

1…

2…

3…

4. Khodor Oleg Lvovich

5…

Yours sincerely

President of the Federation

I.A. Krivoshlyk”

22.      The  Review Applicant had made her arrangements for travel to Australia, this through her own travel agency. She was to travel on a date later than her son’s original intent and later than the games were to be held and incidentally later than her son’s exams. It was she who said to the Visa Applicant when he was unable to travel to the games by reason of the pending examinations, “why not use the existing visa to come with me to Australia?”.. She said in her evidence that she “did not realise that he was unable to use the sports visa”. Nor did her son. It was “my error” she said “not my son’s”. The Visa Applicant said that he did not initially want to agree to the suggestion. He later changed his mind.

23.     The Review Applicant caused arrangements to be made for the obtaining of airline tickets for her son and hotel accommodation in Australia. On 10 November 2000 mother and son travelled to Australia together. The Paralympic Games were by then concluded. The Visa Applicant stayed in Sydney and the Gold Coast with his mother and then within the time granted by his visa and after spending only nine days in Australia returned to Belarus on 21 November 2000.

24.     The Review Applicant after her son’s departure met a man whom she married on 28 January 2001. She made an application for permanent residence, sponsored by her husband. Seemingly he changed his affiliation and withdrew the sponsorship. He had been and was violent towards her and they separated. She obtained her residency on 25 January 2002 relying in part on the domestic violence.

25.     On 11 March 2002 the Visa Applicant made an application in Moscow for a visa based on his child dependency. The Review Applicant prepared the actual application form and her son signed it. The son was interviewed in Moscow on 3 April 2002. During such interview he was asked amongst other questions the following and replied:

“…

Q: In 2000 you applied for 421 visa to Australia as a baseball and softball coach. Any comments?

A: I don’t have comments. I’ve never been working as a coach.

Q: Does it mean that you’ve provided a false document?

A: It looks like that.

Q: What was the real purpose of your visit?

A: Just to see the country.

…

Q: Did your mother meet her last husband before you left or after?

A: She was corresponding with him earlier but I’ve never met him.

…”

There is a notation appearing at the foot of the questions and answers, no doubt there are inserted by the interviewing officer reading:

“…doubts about credibility of PA and fact he provide false and misleading information previously in order to secure entry to Australia…”

26.     The answers given by the Visa Applicant and inquiries made by the Respondent raised the issue of character concern and more particularly the genuinness of the Visa Applicant’s association with the softball/baseball paralympic committee. The Visa Applicant went to the federation asking them to write a letter in the context of the Respondent “not believing I had anything to do with baseball”.. A week later he returned and obtained a letter. It was written in Russian. The Respondent wanted an English version. The Visa Applicant says he had it re-typed by the secretariat and sent back for signature. He has not retained the Russian version. Such letter reads:

“…

Belarus baseball and softball federation

…

Dear Sirs,

Over many years Oleg Khodor was a member of our baseball league, a good player and a coach.

He helped the coach for a long time to train schoolboys and handicapped children. He is of good character, hardworking friendly and professional in what he does. Sportsmen, schoolboys and handicapped children respect and love him very much. In the absence of the coach of a team of handicapped children he was entrusted with coaching these children. So it is true that often he was a coach of handicapped children team. And he worked mostly as a volunteer. He had been sent several times to the competitions in different cities such as Moscow, St Petersburg and other cities. He enjoyed his work greatly because he was good at it and felt respect from the others.

Therefore the decision of Council of our Federation was to direct Oleg Khodor to Australian Parolymic Games in 2000 and gave him the reference specifying him as a coach of handicapped children team. We confirm aforesaid.

Respectfully yours,

President,

Sechko A.I.”

27.     The Visa Applicant has not yet completed his studies and anticipates graduating in March 2004. In the meantime the Review Applicant has maintained her financial assistance to her son. She owns a housing unit in Belarus, part of the rent from which he uses for his support. She has in the last four months sold her travel agency business and proposes in due course to also sell the unit and use the proceeds in aid of funding her permanent residency in Australia.

respondent’s contentions and decision

28.     As indicated earlier in these reasons, the Respondent contends and maintains as the basis for its opposing the grant of a visa to the Visa Applicant that the Visa Applicant:

·     was a party to false representations and statements as contained in the October 2000 visa application;

·     caused two letters (T4/20, T4/22) to be obtained or prepared in support of the October 2000 application, which were false or misleading;

·     travelled to Australia under the guise of a visa obtained under false pretences;

·     caused to be obtained or prepared a letter purporting to be signed by Mr Sechko, which was false or misleading.

29.     I am satisfied on the basis of evidence tendered at the hearing that the Visa Applicant sought and obtained the October 2000 visa with the assistance of the Russian Federation and relying upon his association with and his rendering assistance to handicapped children participating in baseball and softball. I accept that he was so engaged and that he devoted his time to this community activity. The Visa Applicant could have been more accurately described as a “public sports” instructor working with handicapped children. Whilst he does not himself describe his involvement as that of a “sport coach” he could have so been seen by others. He was to “take part in sport competitions” even be it as a spectator.

30.     I am not satisfied and do not find that the Visa Applicant was a party to the making of false representations or that he caused a letter to be obtained and presented to the Respondent that was false or misleading. I further accept that the Visa Applicant and the Review Applicant did not knowingly seek to use the visa granted for an improper purpose or that it was obtained under false pretences.

31.     The Respondent further contends that the answers given by the Visa Applicant at the interview in Moscow were incorrect or misleading. The Respondent thus contends that when the Visa Applicant replied “It looks like that” to a question directed to his never having worked as a coach, that this was an admission by him of the making of a false representation. I do not see it as such. The Visa Applicant was responding to a question directed to a statement made in the application which he had signed but not read, he not at that time being fluent in English. I see no more in his answer than an acknowledgment of the reality. Again, it is said that his answer to the effect of his mother corresponding with the gentleman who was to become her husband at an earlier date being inconsistent with the mother’s evidence was further indication of the unreliability of his evidence. The Visa Applicant never met his mother’s then husband. The notation made by the interviewing officer is not in accord with the conclusion that I consider appropriate to be made. I do not find that the Visa Applicant provided false and misleading information in order to secure entry to Australia.

32.     The Respondent further maintains that the letter or reference signed by ”Sechko A.I.” is false. I am also not satisfied that this is so. Both of the Applicants gave credible evidence as to the obtaining of the letter. A conversation had between Mr Sechko and officers of the Respondent when the latter was seeking to obtain confirmation of the genuinness of the letter was recorded. In such record of the conversation the following appears:

“Once I asked for base ball federation I was put through to Mr Sechko who introduced himself as vice president of the federation…I asked Mr Sechko whether he remembers signing certificate for Mr Khodor and can confirm his position. Mr Sechko advised that he is not sure whether he signed the letter for Mr Khodor or not, and needs to check that…”

In a later conversation between a representative of the Respondent and Mr Sechko occurring four days after the above the record reads as follows:

“Tried to contact Mr Mitkevich (president of BBSF) but without success. Talked to Mr Sechko, who confirmed that he signed the certificate for Mr Khodor and that Mr Khodor worked for BBSF though he wasn’t on the staff and wasn’t paid. However Mr Sechko couldn’t remember when he signed the certificate or since when Mr Khodor worked for the federation. When asked about what work Mr Khodor did for BBSF Mr Sechko advised that he was coaching children and also bringing equipment from abroad. Asked whether Mr Khodor ever played for the baseball team Mr Sechko said “no”.. When advised that his letter stated the opposite, Mr Sechko said that there must be a mistake with translation of w/c. Mr Sechko advised that certificate was prepared by the secretary and he doesn’t have the Russian version of it. When asked why the certificate states that he is president of BBSF, Mr Sechko advised that it must be a mistake of the interpreter who used to work for them. Asked Mr Sechko who in fact prepared the certificate that he signed, he said that he is not sure because it was all done in a hurry..."

33.     A print-out from the web-site of Belarus Baseball and Softball Federation (Exhibit 1) shows a “Mr Sechko” as Vice President.

34.     I am satisfied that sufficient evidence appears from the notes of the conversation with Mr Sechko and Exhibit 1 to satisfy me that a reference was obtained from the federation confirmatory of the Visa Applicant’s involvement in assisting handicapped children and their baseball activities.

35.     The contentions raised as to the character of the Visa Applicant have not been sustained. I am not satisfied that the past and present general conduct of the Visa Applicant is such as to make him one who does not pass the character test.

36.     Consistent with these findings an exercise of the residual discretion does not arise.

37.     Accordingly the decision under review is set aside. The application is remitted to the Respondent with a direction that the application is not to be refused on the ground that the Visa Applicant does not satisfy the character test.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

Signed:         Neil Glaser   
  Associate

Dates of Hearing  1, 2 and 12 December 2003
Date of Decision  19 December 2003
Representative for the Applicant    Mr Y Kyselov

Solicitor for the Respondent          Mr G Peek