Toro and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 1016 (25 October 2002)

Last Updated: 25 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1016

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/132

GENERAL ADMINISTRATIVE DIVISION )

Re Gloria Toro

Applicant

And Minister for Immigration Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date 25 October 2002

Place Sydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a Direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Ramon Oswaldo Cedillo.

..............................................

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION - Spouse provisional visa - character test - whether the Visa Applicant passes the character test - examination of the Visa Applicant's immigration misconduct - held that the Visa Applicant fails the character test - discretion that the Tribunal may exercise where the Visa Applicant fails the character test - necessity to balance the hardship to the Applicant against the expectations of the Australian community - held that the discretion should be exercised in favour of the Visa Applicant - decision under review set aside.

Migration Act 1958 ss 499, 499(1)(2), 501, 501(1), 501(6), 501(6)(c)(ii)

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

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551

Re Soufan and Minister for Immigration and Multicultural Affairs [2001] AATA 650

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

REASONS FOR DECISION

25 October 2002 RP Handley

1. This is an application by Gloria Toro ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 21 December 2001 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Ramon Oswaldo Cedillo ("the Visa Applicant").

2. At the hearing, the Applicant was represented by Ron Kessels, Solicitor and Migration Agent, and the Respondent was represented by Greg Peek, Solicitor, of the Australian Government Solicitor's office. The evidence before the Tribunal comprised the documents produced pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. Oral evidence was given in person by the Applicant and Esneda Azoz, and by conference telephone by the Visa Applicant and Associate Professor Susan Hayes.

BACKGROUND

3. The Applicant, Ms Toro, was born in Colombia on 12 February 1955 and is aged 47. Between 1981 and 1982, Ms Toro had a de facto relationship with William Zalazar and on 20 March 1981 their child, Dora Eliza Zalazar, was born. Ms Toro arrived in Australia on 15 October 1995 on a visitor visa. She subsequently applied for a protection visa which was granted on 6 December 1999.

4. The Visa Applicant, Mr Cedillo, was born in Ecuador on 24 August 1964 and is aged 38. In February 1982, Mr Cedillo commenced a de facto relationship with Maria Tucuri and they had three children: Johanna who was born on 3 April 1983, Kevin who was born on 4 May 1990, and Christopher who was born on 4 November 1993. Mr Cedillo arrived in Australia on 23 September 1995 on a visitor visa valid for three months from the time of arrival. On 28 August 1996, he lodged a protection visa application which was refused on 30 June 1997. His application to the Refugee Review Tribunal ("RRT") was rejected because it was not lodged with the RRT within 28 days of notification of the decision to refuse Mr Cedillo's application for the protection visa.

5. Ms Toro and Mr Cedillo met in Sydney in October 1995 and commenced living in a de facto relationship in February 1996. They were married in Sydney on 15 April 2000 and Mr Cedillo departed Australia on 31 May 2000. He is currently living in the United States ("US") and working casually, and returning to Ms Toro's family in Colombia on a regular basis in order to comply with US visa requirements. He states he has not returned to his home in Ecuador because of his fear that he would be persecuted as a result of his former political activities, although he has visited Tulcan, which is on the Ecuadorian side of the border with Colombia, where he has met with his children.

6. On 12 June 2000, Mr Cedillo lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Santiago, Chile. On 13 February 2001, Mr Cedillo was interviewed by a Senior Migration Officer from the Embassy in Bogata. On 21 December 2001, a delegate of the Respondent decided to refuse the grant of a subclass 309 visa to Mr Cedillo. On 30 January 2002, Ms Toro lodged an application for a review of this decision with the Tribunal.

RELEVANT LAW AND POLICY

7. Under s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:

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;...

8. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:

either

(a) the applicant satisfied the Minister that the applicant passes the character test; or

(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.

9. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".

10. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

11. The issue for the Tribunal to determine in this case is, therefore, whether Mr Cedillo is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

ORAL EVIDENCE

12. In relating the events described below, the Tribunal relies on the oral evidence and written statements of both Ms Toro and Mr Cedillo whom the Tribunal found to be reliable and credible witnesses.

RAMON OSWALDO CEDILLO (the Visa Applicant)

13. Mr Cedillo gave evidence that he grew up in the small city of Pasaje, in the Province of El Oro in Ecuador. He was one of eight children who were raised by his mother alone, following the death of her third partner. In September 1983, Mr Cedillo commenced living in a de facto relationship with Maria Tacuri, to whom his three children were born.

14. Whilst he became interested in politics generally in High School, he later became more interested in local government affairs, particularly after he and his mother built a home on a block of land which had no basic services. He joined an organisation called the "Committee for the Improvement of Miraflores Suburb" (T, p317) which dealt with the necessary authorities to have services such as water, electricity etc provided to that community. In August 1991, he was elected President of that organisation. In 1992, Mr Cedillo became involved with the district organisation, their main concern being the lack of sanitation, as the districts were not connected to the city sewerage system. In 1994, the district organisation agreed to support the Social Christian Party ("SCP") in forthcoming elections, including, in particular, Mr Raul Rivas Pazmino an SCP candidate for a Senate seat. Mr Pazmino was subsequently elected.

15. As part of their political campaign, the SCP promised to complete the much needed sewerage system for the district, and had pipes laid along the streets as an indication of their good faith in having the work done. However, when after the election it became obvious that the work was never going to be done, Mr Cedillo denounced Mr Pazmino in the local newspapers. As a consequence of Mr Cedillo's actions, he received threats, including from Mr Pazmino personally by telephone. He was subsequently beaten up by an unknown person and his business was broken into and ransacked, and a note left threatening to kill and rape his wife and children.

16. Following these threats and beatings, Mr Cedillo decided to leave Ecuador. He arranged, with the assistance of his mother, for his de facto wife and children to leave their home and take refuge in a country Church about two hours from Pasaje, because he was frightened that the threats would be carried out against them. He said that Ms Tacuri went willingly, leaving their house empty, and the Church arranged accommodation for them locally. Neither he nor his mother told anyone of his family's whereabouts. Mr Cedillo said that Ms Tacuri and the children remained in the care of the Church for two years before returning to the family home, where they are still living.

17. Mr Cedillo arrived in Australia on a visitor visa on 23 September 1995. He said he did not bring his family with him because he had to disappear quickly because he was scared that Mr Pazmino would kill him, and also because he had been having relationship problems with Ms Tacuri and thought it would give him the chance to think about their relationship. He went to a travel agent to ask for information about coming to Australia, but did not go to the Australian Embassy. The travel agent told him that he could get a visitor visa, but did not give him any information about other visas. Mr Cedillo said that whilst he did say 'yes' in response to the question at the interview in Bogota on 13 December 2001, whether his sole purpose in coming to Australia was to apply for refugee status, this was not correct (T12 p167). He said at the time of coming to Australia, he had no notion that he was going to apply for refugee status, as he did not even know of the existence of a refugee or protection visa.

18. With respect to the Incoming Passenger Card (T9), Mr Cedillo said he was assisted in completing it by a fellow passenger who spoke a bit of Spanish, because Mr Cedillo could not read English. He said that his fellow passenger read out the list of alternatives on the card. When he got to the box "never married" Mr Cedillo asked him to tick this, and his fellow passenger did not think it necessary to read any further.

19. Mr Cedillo said that when he left Ecuador, his relationship with Ms Tacuri had not ended, but that it finished little by little. He first met Ms Toro shortly after he arrived in Australia in October 1995. They commenced living together in a de facto relationship in February 1996. Mr Cedillo said when he and Ms Toro first met, he told her about his relationship with Ms Tacuri and about his three children. He told Ms Tacuri about his relationship with Ms Toro when they began living together, but Ms Tacuri did not react to this, because their relationship had "gone cold".

20. Mr Cedillo said that from the time of his arrival in Australia to the time of his departure, he maintained ongoing contact with his children. He would send money to them every two or three weeks depending on his work situation, usually approximately $150 to $200 on each occasion, which was sufficient for their maintenance.

21. Approximately two months after his arrival in Australia, Mr Cedillo commenced work and worked until the time he left Australia. Mr. Cedillo said that he did not have permission to work initially and, although he knew it was wrong, he had no alternative as he had to live. In June 1997, he received a letter which he took to give him permission to work. As he was not told otherwise, he assumed he had permission to work after June 1997.

22. Mr Cedillo said that it took him a while after arriving in Australia to make a protection visa application because he did not know what a protection visa was. He only found out about this when talking to a friend in Australia who had made a similar application. This friend advised him to go to Monica Celedon, a Migration Agent who spoke a little Spanish, which he did. She completed a protection visa application for him, without the assistance of an interpreter, and it was lodged in August 1996 (T19).

23. Mr Cedillo said that it was on Ms Celedon's advice that he put on the application that he was in a de facto relationship with Ms Tacuri, even though he had told Ms Celedon that his relationship with Ms Tacuri was in difficulty before he left for Australia and he had considered ending the relationship. He knew it was wrong to put this in the application, but he thought he should do so because Ms Tacuri was the mother of his children, and because this is what Ms Celedon advised. He told Ms Toro that he put Ms Tacuri's name on the application because she was the mother of his children, and not because they were in a relationship. Ms Toro accepted this because they trusted one another.

24. With respect to the statement attached to the protection visa application (T22), Mr Cedillo said that he prepared this statement himself, without Ms Celedon's assistance. He wrote the statement in Spanish, and Ms Celedon had it translated. He named Mr Pazmino in the statement as one of those who threatened him because Mr Pazmino had personally threatened him on the telephone. Mr Pazmino was a person without scruples.

25. On the 30 June 1997, Mr Cedillo received advice that his protection visa application had been refused (T19 p268). Upon receipt of this letter, he went to see Ms Celedon. Ms Celedon told him that he could apply for a review of the decision, she completed the necessary form for him, and said that she would send it off within the required time. However, the form was not received by the RRT in time, and a review was denied.

26. Mr Cedillo again went to see Ms Celedon, who informed him that he could make another protection visa application. She completed a further application form, using the same information, which he signed on 9 June 1998 (T p230-239), although he admits that he did not read the application through. Mr Cedillo said he never found out the result of this application even though he asked Ms Celedon about it on a number of occasions. He assumed it was still being processed.

27. On the 19 October 1999, Mr Cedillo went to see Ms Celedon and obtained his file from her. This was after the successful outcome of Ms Toro's appeal to the RRT. Mr Cedillo said he retrieved his file because he wanted to handle the matter himself. He subsequently complained to the Migration Agents Registration Authority ("MARA") about Ms Celedon's handling of his protection visa application and her failure to lodge his review application within the required time. He said he is still not aware of the result of his complaint.

28. On the 15 April 2000, Mr Cedillo and Ms Toro were married at Darlinghurst, Sydney. When, in early 2000, Mr Cedillo and Ms Toro were planning to marry, Mr Cedillo consulted another migration agent, Melany Ramos, with respect to appealing the decision to refuse him a protection visa. Ms Ramos made two submissions to the Respondent on Mr Cedillo's behalf (T14 p177 and T19 p225). Ms Ramos had previously acted for Ms Toro with respect to the lodgment of her refugee visa application. Mr Cedillo said he did not notice Ms Ramos' mistake in her letter to the Australian Embassy dated 14 May 2001 (T p177) when she said that Mr Cedillo was still in a de facto relationship with the mother of his children in 1996.

29. On 30 May 2000, Mr Cedillo consulted Dr Charles Sinclair, Migration Agent, of LMG Solicitors & Attorneys of Darlinghurst, with regard to the completion of a spouse visa application. Ms Toro accompanied him to his appointment but did not assist with the completion of the form. His spouse visa application (T p13) was completed by Dr Sinclair with the assistance of a female friend of Dr Sinclair who acted as interpreter although she was not a professional interpreter. Mr Cedillo acknowledged that he did not tell Dr Sinclair he was having difficulties with the interpreter. He told Dr Sinclair that his relationship with Ms Tacuri ended in 1996, and he did not notice that Dr Sinclair had mistakenly put 1990 on the application form. Dr Sinclair forwarded Mr Cedillo's spouse visa application to the Australian Embassy in Santiago on 5 June 2000 (T2).

30. On 31 May 2000, on the advice of Dr Sinclair, Mr Cedillo departed Australia and went to Colombia where he lived with Ms Toro's family in Pereira for four months. Whilst in Colombia, he travelled by bus for approximately 14 - 15 hours to the town of Tulcan, near the Ecuador border, in order to see his children. He said that since fleeing his home, the only occasions he has been to Ecuador have been to Tulcan for this purpose because he is still too frightened to return to Pasaje as the people who threatened there him still have political power in Ecuador. Mr Cedillo said that it takes his children, accompanied by their mother, 14 hours by road to reach Tulcan.

31. After four months in Colombia, Mr Cedillo left and went to the United States where he lived with Ms Toro's brother. He had previously applied for a tourist visa for the US which allowed him to stay for six months. In October 2000, Ms Toro travelled to New York, where she and Mr Cedillo lived together for a period of six months. Whilst in New York during this period, he maintained contact with his children constantly by telephone and also sent them money for their maintenance. Mr Cedillo said the US tourist visa does not permit him to work, but he works illegally because he has no other option.

32. Since Ms Toro's return to Australia, Mr Cedillo has been going back and forth between Colombia and the US, renewing his US tourist visa on each occasion in order to re-enter. He usually stays with Ms Toro's parents in Colombia for about two months, and then with Ms Toro's brother when he returns to New York for six months. He has travelled to Tulcan twice to see his children, staying with them for approximately four days. He loves his children very much and hopes that one day, if he is allowed to come to Australia to live, his children will be able to come and stay with him and Ms Toro, whom he said would welcome the children.

GLORIA TORO (the Applicant)

33. Ms Toro said that she was born in Pereira, Colombia. From 1981, she lived in a de facto relationship with William Salazar, this relationship ending in 1982. She has one child, a daughter, Dora, who lives in Colombia. An application for her daughter to come to Australia as her dependent child has been lodged with the Department.

34. Ms Toro said that whilst working in Colombia, she became involved with the food workers' union, known as Sindicato Nacional de la Industria de Alimentos, and with a human rights organisation called the Regional Organisation for Human Rights, Pereira. These organisations made representations to the local government for justice for people who had been persecuted. As a result of her involvement in these organisations, Ms Toro received death threats and was fearful for her life and that of her daughter. On one occasion, her house was broken in and ransacked. As a consequence of these threats, Ms Toro fled Colombia, leaving her daughter behind with her family and, on 15 October 1995, Ms Toro arrived in Australia on a visitor visa.

35. Ms Toro said that she met Mr Cedillo only a few weeks after her arrival in Australia and within days of his arrival in the country. They were introduced at the home of a friend of Ms Toro. Ms Toro said they had a lot in common and started going out together late in 1995. Mr Cedillo told her when they first met that he had three children living in Ecuador by a woman with whom he had been living in a de facto relationship.

36. Ms Toro and Mr Cedillo commenced living in a de facto relationship in February 1996. At that time, Ms Toro believed that Mr Cedillo was still in a de facto relationship with Ms Tacuri. They talked about this, and she accepted it. His relationship with Ms Tacuri finally ended about three months after they commenced living together. Ms Toro knew, at this time, that Mr Cedillo was in Australia illegally and, although he was working, he did not have permission to do so. This did not worry Ms Toro because she in the same situation. They were both then working in the hostel where they lived. They discussed their situations and decided to fight on and see what happened in the future.

37. After arriving in Australia and talking to a friend of Ms Toro's, Ms Toro and Mr Cedillo both realised that they could apply to stay in Australia as refugees. Ms Toro said she knew nothing about refugee status when she arrived - she had just wanted to flee from her country. At first, they did nothing about applying for recognition as refugees because they were both frightened that they would be returned to their home countries. They decided that Mr Cedillo should apply first because they thought he had a strong case because of the death threats made against him as a result of his activities in Pasaje. Mr Cedillo subsequently sought advice, through Monica Celedon, but Ms Toro said she was still too frightened and did not apply until April 1997. Although she and Mr Cedillo discussed his application, he applied for it independently through his migration agent.

38. Ms Toro said she accompanied Mr Cedillo to his appointment with Ms Celedon but did not actually go into her office with him. She said that Ms Celedon advised Mr Cedillo to put Ms Tacuri rather than Ms Toro as his de facto in his protection visa application, even though Ms Celedon knew that Ms Toro and Mr Cedillo were living in a de facto relationship. Ms Toro said she knew this was a lie, and that the relationship between Mr Cedillo and Ms Tacuri had ended, but it was for the sake of his children, so she went along with it. Ms Celedon advised that it would make it easier to bring the children out to Australia if the mother's name was on the application. Ms Toro knew how much Mr Cedillo adored his children and how he hoped they might be able to come to Australia to visit. Because at that time, they were both frightened of having to return to their countries, they followed Ms Celedon's advice.

39. On 1 April 1997, Ms Toro sought the advice of Melany Ramos, migration agent, with respect to her application for refugee status. She said that Ms Ramos knew she was living in a de facto relationship with Mr Cedillo, because they had met Ms Ramos socially when they first arrived in 1995. Ms Ramos did not advise her to put Mr Cedillo on her application form as her de facto, nor did she advise her that she could include Mr Cedillo in her application. Ms Toro said it was not intentional that she did not list him as her de facto. Nevertheless, she acknowledged that she was concerned her application might affect Mr Cedillo's as they hoped to stay together.

40. When Mr Cedillo's Bridging Visa expired, he remained in Australia unlawfully and continued to work. They discussed marriage but decided that the future was too uncertain as neither had been able to regularise their status in Australia. It was not until Ms Toro received her protection visa that they decided to marry. She said they had not planned for Mr Cedillo to apply for a spouse visa if she was granted a protection visa, but once she received her visa, it was obvious that he could apply as her husband.

41. Dr Sinclair completed Mr Cedillo's spouse visa application with the assistance of an interpreter who was a friend and not a professional interpreter, a fact they discovered later. Ms Toro accompanied him to this appointment. She said Mr Cedillo did not tell Dr Sinclair that his relationship with Ms Tacuri ended in December 1990, and that putting this in the application form must have been a mistake on the part of the interpreter who did not have a very good command of English.

42. When Mr Cedillo left Australia for Colombia, Ms Toro was devastated. This was confirmed by her friend Mrs Esneda Azoz who also gave evidence at the hearing. Mrs Azoz said that Mrs Toro is suffering greatly as a result of the separation, because they were in a truly loving relationship.

43. After Mr Cedillo had been in Colombia for four months, he and Ms Toro decided that they would meet in the US, as it was the only place where they could be together. They decided to stay with one of Ms Toro's two siblings who live in New York. When Ms Toro first arrived in the US, she and Mr Cedillo travelled around Ohio and then settled in New York with her brother. She paid for the trip herself and Mr Cedillo paid his fare from Colombia with money he earned whilst working as a welder in Colombia. Ms Toro's family paid their living expenses.

44. Whilst in New York, Ms Toro applied for a tourist visa for her daughter to travel to the US to met them, but this was denied. Also, while they were there, Mr Cedillo also received notification of the refusal of his spouse visa application. Ms Toro was so devastated by these events, and by her longing to see her daughter after seven years, that she became "paralysed" and was hospitalised for a week, for which she was billed US$23,000. In cross examination, Ms Toro acknowledged that she had no documentation to prove this, but could have it sent over by her husband from New York. Upon her release from hospital, Ms Toro decided that she would return to Australia. Although she was very depressed, she thought it best to be in Australia in order to deal with things.

45. Ms Toro said that, since her return, her depression has worsened. She is very lonely. She has been seeing a doctor on a regular basis although she recently changed doctors because of language difficulties. She now sees a female doctor at Kingsford, Dr Regina, who speaks a little Spanish. On one occasion since her return, Ms Toro went to hospital suffering from dizzy spells, where she was treated for an hour or so. She now takes medication for her depression - Solvan - and Valerian which calms her nerves and helps her sleep.

46. Dr Regina also advised Ms Toro to should see a psychologist, Ms Gabrielle. Ms Toro saw her once, about two months ago, but because of money problems, she has not been able to afford to go again.

47. The need for her to seek treatment was confirmed by Associate Professor Susan Hayes, who gave evidence on Ms Toro's behalf. Ms Toro consulted Professor Hayes for the purpose of preparing a medical report for the hearing, the cost of it being met by Mr Cedillo. Professor Hayes said Ms Toro's on-going sadness and depression "is bordering on suicidal tendencies", and that she requires on-going treatment for her psychological condition. In her opinion, Ms Toro's condition stems from the separation from her husband as she seems accepting of the separation from her daughter.

48. Ms Toro said she has appealed to the Migration Review Tribunal against the Department's decision to refuse her daughter a visa to live with her in Australia. Ms Toro speaks to her husband every day by telephone. She said that if her husband's application is refused, then their relationship will end because she will never return to Colombia and he can never live in Ecuador.

SUBMISSIONS

Applicant

49. Mr Kessels, for the Applicant, submitted that Mr Cedillo is a person of good character but, if the Tribunal finds otherwise, then the s 501(1) discretion should be exercised in his favour. In this respect, Mr Kessels said regard should be had to the best interests of Mr Cedillo's children and their ability to come and visit him in Australia, the fact that Ms Toro's daughter's application is before the Migration Review Tribunal, and the relationship between Mr Cedillo and Ms Toro and the effect that their separation is having on Ms Toro's health.

50. With regard to the incorrect date on the spouse visa application as to when Mr Cedillo's relationship with Ms Tacuri ended, Mr Kessels said Mr Cedillo did not tell Dr Sinclair that the relationship ended in 1990. He told him it ended in 1996. Mr Cedillo and Ms Toro think that this was an error on the part of the interpreter. There was no advantage to Mr Cedillo by giving the incorrect date. It would certainly seem a mistake in light of the fact that the form stated his last child was born in 1993.

51. In respect to the error on the Incoming Passenger Card, Mr Kessels said Mr Cedillo did not read English at that time, and he relied on the assistance of a fellow passenger. This person asked him whether he was single or married. When Mr Cedillo said that he was not married, he ticked that box. Mr Kessels said Mr Cedillo would have gained no advantage by ticking something else.

52. Mr Kessels noted there was no copy of Mr Cedillo's visitor visa in the T Documents, and there was therefore no evidence that he gave false information on the application for his visitor visa, which was obtained through a travel agent.

53. With regard to the incorrect information on the protection visa application that Mr Cedillo was still in a de facto relationship with Ms Tacuri, Mr Kessels said Mr Cedillo acknowledges this information was incorrect and he knew this, but he was acting on the advice of his Migration Agent, Ms Celedon. He thought that this would assist his children in being able to come to Australia. Mr Kessels noted Ms Celedon has since been deregistered for failure to act with due diligence and competence. He suggested that Ms Celedon simply did not know what she was doing, and submitted that such action by Mr Cedillo does not suggest that he is not a person of good character.

54. With regard to Mr Cedillo making false or misleading statements in his protection visa application, Mr Kessels contended that Mr Cedillo did have a genuine fear for his life, and the statement he made to accompany his application was not false and there was no evidence to suggest otherwise. He noted that departmental officers had accepted the factual basis of Mr Cedillo's claims. However, since the RRT did not review Mr Cedillo's application because it was lodged out of time, the Tribunal does not have the benefit of its views. Mr Kessels noted that whether or not Mr Cedillo had a well-founded fear of persecution sufficient to meet the definition of "refugee" under the Refugees Convention, is not a matter for the Tribunal to decide. Mr Kessels said Mr Cedillo's behaviour since leaving Australia supports the view that his fear is genuine. He has gone to Colombia, but he will not return to his home in Ecuador, and will only venture to the border town of Tulcan in order to see his children.

55. With regard to having permission to work, Mr Kessels said Mr Cedillo thought he had permission to work after his application for a protection visa was lodged in April 1997 and while he was waiting for the decision to be made. After the RRT decision went against him, Mr Cedillo went back to Ms Celedon who suggested that a second protection visa application be lodged. While the application form was completed, it is unclear whether it was actually ever lodged. The copy of the second application contained in the T Documents does not have a receipt stamp on it, suggesting that the form was never received by the Department. Mr Cedillo checked on its progress with Ms Celedon, who advised him that she had heard nothing. He believed the form had been lodged and was awaiting a determination being made.

56. Mr Kessels said Mr Cedillo acknowledges that he overstayed his visitor visa and that he worked illegally in Australia for the time he was here. He has also worked without permission in the US since his arrival there, although there is no evidence before the Tribunal that this is a migration offence.

57. Mr Kessels referred to the decision of Deputy President Chappell in Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551. In that case, although the Visa Applicant worked illegally, this was for good reason which was taken to be a countervailing factor. Deputy President Chappell found the Visa Applicant to be of good character.

58. With regard to the exercise of the Minister's discretion under s 501(1) of the Act, Mr Kessels submitted this should be exercised in favour of Mr Cedillo. He said that the seriousness of the conduct was at the low end of the scale of misconduct: there were no false documents involved nor any false claims, but Mr Cedillo had lied with respect to his de facto relationship, had worked illegally and overstayed his visitor visa.

59. Mr Cedillo left Ecuador because of threats to his life, but he has maintained regular contact with his children and has supported them financially. He accepts that his children may never be able to come to Australia permanently. However, if the children are able to visit him in his home in Australia, for a reasonable period of time, this is preferable to the present situation when he only sees them for a few days while staying in a hotel in Tulcan.

60. Mr Kessels said the relationship between Mr Cedillo and Ms Toro should also be considered. The Department's delegate accepted that the relationship is a genuine one, and all the evidence, including that of Mrs Azoz, suggests that it is a genuine, loving relationship. Mr Kessels noted Ms Toro's evidence that she can never return to Colombia and Mr Cedillo's evidence that he can never return to Ecuador. If Mr Cedillo cannot come to Australia, then the relationship will end.

61. Mr Kessels also drew the Tribunal's attention to the country information (A6) on both Colombia and Ecuador. He noted that Ms Toro worked for a trade union and a human rights organisation in Colombia and received death threats, from which she was forced to flee. The country information indicates that the situation in Colombia is unchanged. In particular, the International Confederation of Free Trade Unions Report confirms that people in Ms Toro's situation continue to be at risk. In Ecuador, the situation is similar. However, Mr Cedillo's situation is more personal because a former political ally threatened him. Mr Kessels directed the Tribunal to the Country Review Ecuador 2001-2002, dealing with the elections in Ecuador, which accords with Mr Cedillo's account of the elections. Mr Kessels contended that both Ms Toro and Mr Cedillo genuinely believe they cannot return to their countries of origin.

62. With respect to Ms Toro's medical condition, Mr Kessels submitted the Tribunal should take into account the uncontradicted evidence of Associate Professor Hayes that Ms Toro is suffering severe depression related to the separation from her husband. If the relationship breaks down because he is unable to live in Australia, this will have a serious detrimental effect on her health.

63. In response to the suggestion of the Respondent that the Applicant was 'queue jumping', Mr Kessels referred the Tribunal to Re Soufan and Minister for Immigration and Multicultural Affairs [2001] AATA 650 when Deputy President Chappell alluded to it being sometimes necessary to take desperate steps.

Respondent

64. Mr Peek, for the Respondent, confirmed that the Respondent relies on s 501(6)(c)(ii) as outlined in the Respondent's Statement of Facts and Contentions. He said Mr Cedillo's visitor visa was obtained through a travel agent, probably electronically. Nevertheless, it involved deceit because Mr Cedillo was not a genuine visitor to Australia as he conceded he had no intention of returning to Ecuador.

65. With regard to the Incoming Passenger Card, Mr Peek said Mr Cedillo should have ticked the 'de facto' box, particularly as he gave evidence that it was a familiar term in Ecuador.

66. With respect to Mr Cedillo overstaying his visitor visa and working illegally in Australia, Mr Peek said these are serious offences under the Act. Mr Cedillo conceded he had worked illegally. Mr Peek pointed out that Mr Cedillo is now working in the US without permission, in breach of the conditions of his US visitor visa. Such immigration malpractice illustrates recidivism on his part.

67. With regard to Mr Cedillo's protection visa application, Mr Peek said Mr Cedillo made a false declaration with regard to his marital status. He indicated Ms Tacuri was his 'de facto spouse' and was a member of his family unit, when he was, in fact, living in a de facto relationship with Ms Toro.

68. Mr Peek said the Respondent accepts that Ms Celedon's dealings with Mr Cedillo's protection visa application were not competent. She failed to lodge his application for review with the RRT on time and it appears she completed a second protection visa application which was not lodged. Her advice that he could make a second protection visa application was incorrect. Nevertheless, Mr Cedillo knew that the information with regard to his de facto relationship was false and should, therefore, bear responsibility for it. Mr Peek noted Mr Cedillo's complaint to MARA concerning Ms Celedon did not specifically mention her dealings with respect to his protection visa application.

69. Mr Peek submitted that the letter from Ms Ramos to the Australian Embassy dated 14 May 2001 (T p178), which states that Mr Cedillo was in a de facto relationship with Ms Tacuri in 1996, clearly demonstrates a conscious attempt on the part of Mr Cedillo to maintain the false claims he made in his protection visa application.

70. With regard to the exercise of the Minister's discretion in accordance with Direction No 21, Mr Peek emphasised the serious nature of Mr Cedillo's misconduct and the likelihood of his repeating such conduct, as illustrated by his working illegally in the US. Ms Toro acquiesced with Mr Cedillo being in Australia without permission, because she too was not in Australia legally.

71. Mr Peek noted that Mr Cedillo has spent most of his time in the US since leaving Australia, and that both Mr Cedillo and Ms Toro have family in the US.

72. With regard to Mr Cedillo visiting his children in Tulcan, Mr Peek contended that this was implausible. Although Mr Cedillo gave evidence that he would like the children to visit him here in Australia, this would be expensive and inconvenient, and would result in the children spending less time with their father than under the current arrangements.

73. With respect to Ms Toro's medical condition, Mr Peek pointed to the lack of evidence regarding her past treatment, especially from her treating doctors.

74. Mr Peek submitted the Australian community expects non-residents to respect Australian law while in Australia. Mr Cedillo has shown a blatant disregard of those laws and his actions should not result in his being granted a visa.

APPLICATION OF THE LAW AND FINDINGS

75. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Cedillo passes the "character test" having regard to his past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of "good character" in section 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 section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry...

In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).

76. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Cedillo, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

77. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or 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 and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9(c)).

78. Mr Cedillo admits that when he applied for his visitor visa to come to Australia, he had no intention of returning to Ecuador at the expiration of the visa. His intention was to get away from Ecuador and the threats and beating to which he had been subjected. Mr Cedillo does not dispute that he overstayed his visitor visa which permitted him to stay for three months only from the date of his arrival in September 1995. However, as Mr Kessels noted, there is no evidence as to what was stated in his visitor visa application and it may have been obtained electronically through a travel agent. The Tribunal notes that Mr Cedillo did nothing to legitimise his status in Australia until August 1996.

79. The Tribunal also notes Mr Cedillo's evidence at the hearing that he commenced work approximately two months after his arrival, even though he did not have permission to do so. He worked illegally for a lengthy period of time, from approximately November 1995 until his departure, although the Tribunal notes that he thought he had permission to work after 1997 when his protection visa application was lodged. The Tribunal also notes that Mr Cedillo is now working without permission in the US, again, he says, because he has no other option.

80. With regard to the false information on Mr Cedillo's protection visa application as to him being in a de facto relationship with Ms Tacuri at the time of making his application in 1996, the Tribunal notes he did this on the advice of his Migration Agent, Monica Celedon. She advised that it could be of benefit to him if he included the mother of his children in his application. Nevertheless, the Tribunal finds he was aware that he was giving false information and should take responsibility for this. The Tribunal also notes that Mr Cedillo lodged a complaint against Ms Celedon with MARA with respect to her failure to file Mr Cedillo's second protection visa application. Ms Celedon was subsequently deregistered on 22 January 2002 following the investigation of another complainant's claim as to her incompetence and lack of due diligence.

81. On the basis of the Tribunal's findings with regard to Mr Cedillo making false and misleading statements concerning his intended stay in Australia and his working illegally, both in Australia and also the US, the Tribunal is satisfied that there are sufficient grounds for a determination that Mr Cedillo does not pass the character test by reason of his past and present general conduct pursuant to s 501(6)(c)(ii) of the Act. The Tribunal notes that although there are countervailing factors, namely his situation in Ecuador, the Tribunal does not consider these factors of themselves are sufficient to warrant a finding that Mr Cedillo passes the character test. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether or not to refuse the grant of a visa to Mr Cedillo.

82. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No. 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

83. With regard to the protection of the Australian community, paragraph 2.4 states:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community...

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a) the seriousness and nature of the conduct;

(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

84. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".

85. With regard to the first primary consideration and whether Mr Cedillo made a false or misleading statement in connection with his entry into Australia, while he acknowledged that he had no intention of returning to Ecuador at the expiration of the visa, there is no evidence of what he stated in making his visitor visa application. The Tribunal also accepts that the circumstances in which he ticked the "never married" box on the Incoming Passenger Card (T9), because Mr Cedillo was acting on the advice of a fellow passenger. It was not incorrect to tick "never married". Whilst he understood the term "de facto", he did not understand the term "common law". It is plausible that the fellow passenger may not have read out the other alternatives on the form because Mr Cedillo said he was "never married". It would also not appear that there was any benefit in Mr Cedillo ticking "de facto". In any event, the Tribunal accepts that there are mitigating circumstances in Mr Cedillo's case in relation to the threats to his safety in Ecuador.

86. The second primary consideration is the expectations of the Australian community. Paragraph 2.12 states there is an expectation that non-citizens should obey Australian laws while in Australia. In the Tribunal's view, remaining in Australia unlawfully and working without permission are serious matters. Nevertheless, the Tribunal notes what Deputy President McMahon said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 of the relevant paragraph in Direction No 17 which is expressed in identical terms in paragraph 2.12 of Direction No 21:

Paragraph 2.12 (of Direction No 17) gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely. This view has been cited with approval by the Tribunal in other cases, for example, in Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74.

In Mr Cedillo's case, the Tribunal is of the view that the Australian community would take a humane view of the other considerations in this matter.

87. The third primary consideration is the best interests of the child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, "to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration".

88. The Tribunal finds that Mr Cedillo's three children have lived all their lives with their mother in Ecuador. The Tribunal also finds that Mr Cedillo clearly loves his children. He provided financial support for them on a regular basis whilst in Australia, and continues to support them from the US. He maintains regular contact by telephone and now meets up with them in Tulcan on a regular basis. However, Mr Cedillo acknowledged that, currently, the children wish to live with their mother, and thus, they would visit Mr Cedillo in Australia if he were granted permanent residence. Whilst Mr Cedillo said it would be in the children's best interests for them to visit him in Australia rather than Tulcan, the Tribunal questions this view, given the greater cost and distance involved. It could be that they will see less of their father if he is in Australia.

89. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, "it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; and the family composition of the non-citizen's family, both in Australia and overseas.

90. The Respondent does not dispute that the relationship between Ms Toro and Mr Cedillo is a genuine one. To the Tribunal, the relationship appeared a genuine, loving relationship, and the Tribunal accepts that their separation has caused significant hardship to both parties. The Tribunal finds that Ms Toro, in particular, is suffering depression as a result of the separation for which she is currently taking prescribed medication. In her report (A5), Associate Professor Susan Hayes found that Ms Toro's separation from Mr Cedillo has lead to "anxiety and a depression disorder", and Professor Hayes prognosis is "that her condition will deteriorate unless her husband arrives". The Tribunal notes that Ms Toro was aware of Mr Cedillo's unlawful immigration status at the time of their marriage, their having discussed his status when they first met.

91. Weighing up the primary and other considerations, the Tribunal concludes that Mr Cedillo is no threat to the Australian community and that the Australian community would view Mr Cedillo's and Ms Toro's situation humanely and would not expect that his application for a spouse visa application would be refused. The other considerations in this case, in particular the hardship to Ms Toro and her medical condition, are of significance and, in the Tribunal's view, the discretion not to refuse the grant of a visa under s 501 of the Act should be exercised in favour of Mr Cedillo. The Tribunal therefore sets aside the decision under review and remits the decision to the Respondent with a direction to that effect.

I certify that the preceding 91 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.

Signed: .....................................................................................

Associate

Date/s of Hearing 12 and 13 September 2002

Date of Decision 25 October 2002

Solicitor for the Applicant Mr R Kessels

Solicitor for the Respondent Mr G Peek