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Administrative Appeals Tribunal of Australia |
Last Updated: 3 July 2000
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V99/1350
GENERAL ADMINISTRATIVE DIVISION )
Re Eleonora Ivanayevska
Applicant
And Minister for Immigration and Multicultural Affairs
Respondent
Tribunal Deputy President B.M. Forrest
Date 19 June 2000
Place Melbourne
Decision The decision under review is affirmed.
.........(Sgd. B.M. Forrest)............
Deputy President
IMMIGRATION - Cancellation of class 104 (preferential family) visa - Direction No. 17 - whether applicant fails to pass the character test - whether a substantial criminal record - whether not of good character having regard to past and present general conduct - past criminal convictions - criminal history not disclosed - whether discretion should be exercised - decision affirmed
Migration Act 1958 ss. 499, 501(2), (6) and (7)
Administrative Appeals Tribunal Act 1975 s. 37
Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998
Crimes Act 1914 (Cth) s. 85ZM2(b), Division 3 Part VIIC, s. 85ZZH(d),
Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; 153 ALR 463
Goldie v Minister for Immigration and Multicultural Affairs (1998-1999) 56 ALD 321
19 June 2000 Deputy President B.M. Forrest
1. This is an application for review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs to cancel the class 104 (preferential family) visa of Mr Yevgeniy Kamenets'kyy under s. 501(2) of the Migration Act 1958 ("the Act"). The decision was communicated to Mr Kamenets'kyy (in these reasons referred to as "the applicant") in a letter delivered to him on 4 November 1999 at the Australian Embassy in Moscow. The delegate was satisfied that the applicant does not pass the character test on two grounds, firstly, that he has a substantial criminal record: s. 501(6)(a) of the Act and secondly, that having regard to his past and present general conduct he is not of good character: s. 501(6)(c)(ii).
2. In support of the application oral evidence was given by the applicant, his mother Mrs Ivanayevska and her friends Mrs Granovskaia and Mrs Shersher. The Tribunal had before it the documents filed for the purposes of s. 37 of the Administrative Appeals Tribunal Act 1975 and other documents tendered during the hearing. Supplementary documents lodged by the respondent were not received into evidence except for page 32 containing the record of the applicant's convictions which were referred to during his evidence.
3. Section 501 of the Act relevantly provides:
"501 (2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
...
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
...
(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
...
Otherwise, the person passes the character test.
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
..."
4. Section 501 in its present form is a result of the amendments introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, with effect from 1 June 1999. If the Minister reasonably suspects the person does not pass the character test and the person does not satisfy the Minister that he or she does pass the character test the Minister may cancel a visa: s. 501(2). A person does not pass the character test if he or she has a substantial criminal record: s. 501(6)(a). A sentence to imprisonment of twelve months or more amounts to a substantial criminal record: s. 501(7)(c). A person also fails the character test if having regard to either or both past and present general conduct a finding is made that the person is not of good character: s. 501(6)(c)(ii). It is then necessary to decide whether to exercise the discretion in s. 501(2) of the Act in favour of the person notwithstanding the finding that the person does not pass the character test.
5. The concept of "good character" which was discussed by Lee J. in Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-2; 139 ALR 84 at 94-5 refers to the enduring moral qualities of a person and not to reputation or repute. This approach was endorsed by a Full Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; 153 ALR 463 and in Goldie v Minister for Immigration and Multicultural Affairs (1998-1999) 56 ALD 321. In Goldie the Court said at 324:
"The concept of "good character" in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry."
6. For the purpose of the making of decisions under s. 501 of the Act to refuse, or cancel a visa, the Minister has issued Direction No. 17 with effect from 16 June 1999 ("the Direction") which has the force of s. 499 of the Act. The Direction provides guidance to decision-makers in making a decision to refuse or cancel a visa under s. 501 of the Act. Part 1 of the Direction relates to the application of the character test and Part 2 of the Direction relates to the exercise of the discretion.
7. From the evidence and material before the Tribunal, the following broad background emerged.
8. The applicant was born in the Ukraine on 19 March 1966. He married Tat'yana Kamenetskaya on 8 June 1984. The marriage ended on 17 June 1986.
9. On 31 January 1986, the applicant was convicted in the District Court of Dnipropetrovsk, Ukraine in accordance with Article 140 Part 2 (theft), Article 143 Part 2 (fraud), Article 144 Part 2 (extortion) and Article 141 (robbery) of the Penal Code of Ukraine and sentenced to five years and six months imprisonment. On 27 October 1986 he was convicted in the District Court of Tallinn City (Estonia) in accordance with Article 139 of the Penal Code of the Estonian Republic. The sentence of the Estonian Court is not recorded.
10. On 7 March 1991 the applicant married Tat'yana Bovkunova ("Tat'yana").
11. In September 1993 the applicant's mother, Eleonora Ivanayevska ("Eleonora"), sponsored her son's application for migration to Australia. Eleonora had migrated to Australia with her second husband and their daughter Olga in April 1993. The applicant is a son from Eleonora's first marriage. His parents separated when he was a boy. On 21 March 1994 the applicant and Tat'yana applied to migrate to Australia under a class 105 (concessional family) visa category.
12. On 10 April 1995, the applicant attended an interview at the Australian Embassy in Moscow in connection with his migration application. On 29 May 1995 the class 105 visa application was refused on the ground that the applicant failed to achieve the necessary score under the points system. He sought a review of that decision by the Migration Internal Review Office ("MIRO") and on 29 February 1996, MIRO affirmed the decision to refuse class 105 (concessional family) visa and class 104 (preferential family) visa to the applicant and Tat'yana. In relation to the class 104 visa the review officer found that the visa applicants did not satisfy the requirements of a "special need relative". On further review, the Immigration Review Tribunal ("IRT") on 9 August 1996, remitted the matter to the respondent for reconsideration with a direction that the applicant satisfied all the prescribed criteria for a class 104 (preferential family) visa with the exception of the criteria relating to health and public interest and the provision of an acceptable assurance of support. The IRT found that the applicant qualifies as a "special needs relative" within the meaning of Regulation 1.3 in that he is "willing and able to provide substantial and continuing assistance" to his mother Eleonora.
13. On 2 March 1997 the applicant and Tat'yana arrived in Australia and upon arrival resided with Eleonora. Shortly afterwards the applicant and Tat'yana separated as he remained in almost daily contact with his girlfriend Ljubov Tkachuk ("Ljubov") in the Ukraine. The applicant and Ljubov had been in a defacto relationship since about March 1994 and had a daughter, Valeriya, born in the Ukraine on 12 December 1994. In May 1997 he sought a visa for Ljubov and his daughter to enter Australia. This visa was refused. On 30 June 1997 the applicant returned to Russia to live with Ljubov and Valeriya. Tat'yana remained in Australia. The applicant returned to Australia in November 1997 and stayed for a week to finalise his personal affairs with Tat'yana before returning to Moscow.
14. Tat'yana instituted divorce proceedings and on 24 May 1998 her marriage to the applicant was dissolved. The applicant and Ljubov married in Moscow on 8 July 1998. Since January 1998 they have lived, with their daughter, in Ljubov's mother's flat in Moscow. On 22 August 1998 the applicant arrived back in Australia. On 16 November 1998, he sponsored Ljubov and Valeriya to migrate to Australia. He returned to Russia on 16 March 1999 and has remained there since.
15. In his evidence the applicant maintained that he had not decided to end his marriage to Tat'yana but that he had hoped that in Australia she could be medically assisted to have his child and that he only decided to return to Ljubov after his arrival. The facts objectively viewed do not support the applicant's statements. Shortly after his arrival in March 1997 he kept in regular and frequent contact with Ljubov and had left Australia within three months to return to Moscow to be with her and Valeriya. I think it is probable that the applicant's marriage to Tat'yana was effectively over before they arrived in Australia in March 1997 and that when he arrived in Australia he intended to bring Ljubov and Valeriya to Australia.
16. During an interview with immigration officers in Moscow on 4 November 1999, the applicant was informed of the decision to cancel the class 104 visa previously issued to him. From that decision, Eleonora as his sponsor has applied to the Tribunal for a review.
17. The applicant gave evidence in these proceedings at the request of the Tribunal. His evidence was given by telephone from Moscow with the assistance of an interpreter, Mr Gutkin, who was present at the Tribunal.
18. The applicant acknowledged in evidence that he had served approximately five years imprisonment for theft, fraud and robbery offences. He denied that he was convicted of the offence of extortion.
19. In relation to the conviction in the Estonian Court of which no detail other than the fact of a conviction was provided, the applicant said it arose out of a fight with a former girlfriend. He claimed that he had acted in self defence when he struck her on the head with a bottle. He added that for the offence he was not given any additional term of imprisonment to the term he was already serving.
20. The applicant is unable to pass the character test s. 501(6)(a) as he falls within the statutory definition of a person who has a substantial criminal record: s. 501(7)(c), that is, he has been sentenced to a term of imprisonment of twelve months or more. The preconditions to the exercise of the power under s. 501(2) of the Act to cancel the applicant's visa have been satisfied.
21. I turn to consider the further ground relied on by the delegate in cancelling the visa, that having regard to past and present general conduct, the applicant is not of good character: s. 501(6)(c)(ii) of the Act.
22. In Minister for Immigration and Ethnic Affairs v Baker (above), the Full Federal Court (Burchett, Branson and Tamberlin JJ.), in an appeal from a decision of a single judge, Whitlam J., (reported at (1996) 23 AAR 183) discussed the meaning of "general conduct". The Full Court said at FCR 195; ALD 142; ALR 470:
"We do not think there is any warrant for extracting, from the broad word 'general', a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly."
23. The general conduct complained of by the Minister is the making of false and misleading statements in visa applications and in interviews with departmental officers. In the application to migrate to Australia under a class 105 (concessional family) visa, to questions:
"Have you ...
* been convicted of a crime or any offence in any country?
* been sentenced to serve a period of time in jail or other form of detention?" (p120)
the applicant answered:
"No."
24. The applicant was interviewed by an immigration officer on 10 April 1995 at the Australian Embassy in Moscow. The notes of the interview record the applicant stating that he had no convictions and also that he had no children.
25. In the application to migrate to Australia by his spouse Ljubov lodged with the Australian Embassy on 16 November 1998, in answer to question 70:
"Have you...
* been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?"
the applicant answered:
"No."
26. The falsehood is repeated in the residence question (No. 74) where the applicant did not disclose the period he spent in prison. In doing so he breached his obligation as a sponsor not to provide false or misleading information.
27. Notes of an interview by departmental officers in Moscow on 3 June 1999 in relation to Ljubov's visa application record the applicant denying that he had ever been convicted of a criminal offence or that he had ever served a prison sentence. It was in the later interview in Moscow on 4 November 1999 when confronted with the record of his convictions and the information that his visa was being cancelled that the applicant first admitted to the convictions and imprisonment. His evidence to the Tribunal in explanation of the non disclosure was, in short, that the information about his convictions under the Ukraine Penal Code was incorrect and that in any event the convictions have been cancelled and therefore there was no requirement for their disclosure.
28. In relation to the claim that the convictions were "cancelled" I understand this to mean they were properly regarded as spent. There is nothing before the Tribunal other than the applicant's assertion to suggest that the convictions were spent or quashed. The extract of the Criminal Code of the Russian Federation tendered in evidence does not support the applicant's assertion. Only meagre detail of the convictions was available and it is unknown whether the sentences were cumulative, partly so, or concurrent whereby it may have been possible to consider the analogous situation of a spent conviction under domestic law: see s. 85ZM2(b) and Division 3 Part VIIC of the Crimes Act 1914 (Cth) ("the Crimes Act"). However, even if the Ukraine regarded the applicant's convictions as spent, that is an irrelevant consideration because of the effect of s. 85ZZH(d) of the Crimes Act which expressly excludes the operation of Division 3 in relation to the disclosure of information to or by persons for the purposes of making decisions under the Act. For the purposes of migration to Australia, a person is required to disclose whether he has in fact been convicted in any other country and whether he has been sentenced to a term of imprisonment. Even if the assertion regarding the spent conviction had any force in relation to the question of whether he had ever been convicted, and I do not think it does, it has no relevance to the question of whether he had been sentenced to a term of imprisonment.
29. I do not accept the applicant's evidence regarding his convictions. If his assertion is correct he was unconvincing as to why he persistently maintained the absence of any convictions or of imprisonment or failed to provide any explanation of his non disclosure until 4 November 1999 when faced with the cancellation of his visa. In addition, his explanation as recorded in the notes of the interview on that day is inconsistent with the assertion in his evidence in relation to his convictions. The notes record the applicant as saying:
"I didn't touch any documents when I migrated. My wife prepared them all. She told me I didn't need to declare that I'd been in gaol. I didn't sign any forms."
30. This attribution of fault to his then wife Tat'yana together with the fact that instructions were later given to a solicitor experienced in migration law who assisted in the preparation of Ljubov's visa application (also containing false answers about his convictions and imprisonment) in my opinion also adds to the combined strength of an adverse inference against the applicant. I have not seen the applicant to assess his credibility and reliability so any judgment is limited to hearing his evidence albeit through an interpreter, in the face of the documentary evidence. While I acknowledge that taking evidence by telephone in a matter of this nature is not ideal, the impression conveyed by the applicant's answers is that there was not a tinge of regret about his deceptive conduct. In saying that I appreciate this impression may in part be explained due to a belief that he had of being unfairly treated in having his visa cancelled rather than a lack of appreciation of his conduct.
31. I am satisfied that the applicant has since 1994 when he first applied for a visa and in subsequent dealings with the immigration department in the application for a visa by Ljubov and in interviews, provided false and misleading information about his background circumstances for the purposes of obtaining the visas sought. His deceptive conduct in this regard reflects adversely on his enduring moral qualities to the extent that he is not entitled to a favourable character assessment under s. 501(6)(c)(ii) of the Act.
32. In consequence of the findings that the applicant does not pass the character test under s. 501(6)(a) and (c) the residual discretion in s. 501(2) is enlivened. In considering the exercise of the discretion the Tribunal is required to undertake a balancing exercise having regard to three primary considerations and other relevant considerations. The primary considerations are stated in the Direction to be:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental relationship between a child or children under the age of eighteen and the person under consideration, the best interests of the child or children.
33. The first of the primary considerations requires an assessment be made of the level of risk to the community. The factors relevant to this assessment include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated and general deterrence.
34. In relation to the applicant's criminal conduct, information as to the circumstances of the offences was scant. Without the benefit of satisfaction of the facts upon which the convictions were based but as a general observation, offences of theft, fraud, extortion and robbery which attracted a sentence of five years six months imprisonment are to be viewed seriously. The degree of that seriousness, cannot however be properly measured because of the state of the evidence as to the circumstances of the offences. There was evidence by Eleonora that the offences were related to a drug addiction. The next day she asked to retract that evidence. The applicant denied his offending was related to drug addiction and claimed the offences (in the Ukraine) were related to breaches of currency regulations. As stated earlier I have real reservations about his veracity. The applicant seemed to be at pains to brush aside his offending and deflect blame.
35. In assessing the risk of recidivism, I take into account the convictions. I also have regard to his age at the time, the length of time since the offences were committed and the absence of further convictions which objectively provide an indication that the blemishes on his character are fading. In relation to the general conduct aspect I take into account that in the brief periods in Australia he worked as a painter. I also take into account the deceit in immigration matters over a considerable period which extended until relatively recently, behaviour which raises doubts about the extent of the reform of his character. Having regard to his repeated denials of past criminal behaviour, the lack of any discernible appreciation of the significance of his conduct or that he regrets it leads me to the conclusion that I am not satisfied that there is no real prospect of future offending. His assurance of lawful conduct in the future is entitled to no more credence than his denials of unlawful conduct in the past.
36. On the question of general deterrence I think it reasonable to conclude that cancellation of the visa may be viewed as a deterrent to others contemplating providing false and/or misleading information for the purposes of entry to Australia. In the administration of Australia's migration laws if prospective migrants gain a perception that truth in their dealings with the immigration department is not something that is taken seriously then the requirement for truthfulness as to their background is devalued when undertaking the task of making a proper assessment of potential migrants. This is of some significance in a system, as I understand, where the number of places available for permanent residence are limited; persons who act with honesty in their dealings with the system may well be somewhat disillusioned if, other considerations aside, it were thought that persons who act dishonestly are on an equal footing to them or will have their behaviour ignored. Consistent with this I accept that the community expectation would be generally that persons who have engaged in immigration malpractice of the kind exhibited by the applicant not be entitled to a favourable exercise of the discretion.
37. Regarding the best interests of the child, Valeriya, born to the applicant and Ljubov on 12 December 1994, she is not an Australian citizen or permanent resident but a Ukrainian citizen. I accept that her best interests are meshed with her parents in that they are served by her continuing to live as part of a family unit with her parents. Cancellation of her father's visa does not impinge on her best interests as it does not have the effect of leading to separation from one of her parents.
38. Other considerations which may be taken into account are set out in paragraph 2.17 of the Direction. These may be described generally as hardship considerations. The Direction states that these matters be given less individual weight than that given to the primary considerations. The list which is not exhaustive relevantly includes:
(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
...
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen's family, both in Australia and overseas;
...
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; ...
39. The applicant's ties to Australia are family ties to his mother and step-sister. He has no business or other ties here. As mentioned earlier the applicant first arrived in Australia in March 1997 with his then spouse Tat'yana. The applicant remained in contact with Ljubov and shortly afterwards returned to the Ukraine to live with Ljubov and their daughter, Valeriya. The applicant has immediate family ties in Russia where he is at present living with his spouse and daughter. His mother-in-law lives in the Ukraine and has the flat in Moscow where the applicant lives. After he reunited with Ljubov in Moscow he re-entered Australia in November 1997 for a week, returned to Moscow, not returning again to Australia until August 1998 and remaining here until March 1999. It was during this last period in Australia that he applied, in November 1998 to sponsor the migration of Ljubov and Valeriya to Australia. No decision has been made on that application which is awaiting the determination of this matter.
40. On the evidence before me the impact of the separation from family is most profoundly felt by the applicant's mother, Eleonora. When the applicant migrated to Australia in 1997 it was on the basis that he was a special need relative of Eleonora, however, in view of his movements since he first arrived in Australia, it would appear that his personal circumstances overseas have superseded the needs of his mother.
41. Eleonora arrived in Australia with her spouse and daughter Olga in 1993. Her mother came later. Eleonora was divorced in 1997. Olga who is 24 years of age and is divorced has a daughter with whom she lives in an outer Melbourne district. Although Olga did not give evidence as apparently she was required to care for her young child, there was no suggestion that her relationship with her mother and the applicant was other than normal or that Olga could not be expected to provide emotional support for her mother. Eleonora suffers from chronic depression which her doctor (Ex. A2) believes will not be relieved until her son is permitted to return to Australia. She is extremely anxious for her son to be able to return to Australia with his spouse and daughter so that her family may be together in Australia. Eleonora runs a manicurist and pedicurist business which she operates from a hairdressing salon and also (for some of her clients) from her home. She has conducted this business for six years and estimates that her hours of work would be equivalent to about three days per week full time. I accept that in her circumstances travel to visit her son in Russia would be difficult for her as she cares for her elderly mother who lives with her. As I understood Eleonora's circumstances it is not so much an expectation of financial support from her son but the added emotional support that family reunion could be expected to provide. While I accept that the cancellation of her son's visa has caused hardship to Eleonora, in her anxiety to secure her son's presence in Australia, she condoned the non disclosure of his convictions in her sponsorship and in the exercise of discretion, this fact diminishes to some extent the weight to be given to the personal hardship caused to her by cancellation of the visa.
42. In all the circumstances, I think that the applicant is not entitled to a favourable exercise of the discretion. The weight to be given to some indicators of reform and hardship considerations are at this time not outweighed by the force of the primary considerations in the balancing process required by the Direction to be made. I do not mean by this that the applicant should be denied a permanent residence visa in the long term but I think that insufficient time has passed to be satisfied as to the reform of his character as displayed by the evidence of his immigration misconduct.
43. After the hearing concluded some further material was submitted on behalf of the applicant. The respondent objected to this material being received by the Tribunal. Having regard to the fact that the applicant was without legal assistance at the hearing, I have read the further material. It does not alter my consideration of this matter.
44. For these reasons the decision under review is affirmed.
Deputy President B.M. Forrest
Signed: .....................................................................................
Associate
Date/s of Hearing 9 and 10 May 2000
Date of Decision 19 June 2000
For the Applicant Mrs E. Ivanayevska,
assisted by Mr M. Gutkin, interpreter
For the Respondent Ms J. Taverner, departmental advocate
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