Montenegro and Minister for Immigration and Multicultural and Ind igenous Affairs [2002] AATA 1352 (21 August 2002)

Last Updated: 17 September 2003

DECISION AND REASONS FOR DECISION [2002] AATA 1352

ADMINISTRATIVE APPPEALS TRIBUNAL )

GENERAL ADMINISTRATIVE DIVISION ) No N2002/189

Re LUIS MONTENEGRO

Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal : J Block, Deputy President

Date : 21 August 2002

Place : Sydney

Decision :

For the reasons given orally at the conclusion of the hearing in this matter the decision under review is set aside. The matter is remitted to the Respondent with a direction that the discretion not to refuse the grant of a sub-class 309 spouse visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Nelly Henao Ospina.

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service and were corrected by the Deputy President.

The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent, as it is the reasons for the Tribunal's decision.

(Signed) J. Block

Deputy President

DRAFT JUDGMENT

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2002/189

By DEPUTY PRESIDENT, MR J. BLOCK

LUIS MONTENEGRO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SYDNEY, WEDNESDAY, 21 AUGUST 2002

THE DEPUTY.PRESIDENT:

1 (a) The decision under review in this matter is the decision by a delegate of the Respondent made on 8 January 2000 refusing the grant to Nelly Henao Ospina ("the Visa Applicant") of a Sub-Class 309 (Provisional Spouse) visa. The Visa Applicant's application was sponsored by her husband who is the Applicant.

(b) The Applicant appeared on his own behalf while the Respondent was represented by Mr Ashley Mullins of Blake, Dawson, Waldron, solicitors.

(c) The Tribunal had before it the T documents and the supplementary T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

(d) This decision is given ex tempore; it follows that I reserve the right to edit it in order to correct any typographical or similar errors. Oral evidence was given by each of the Applicant and the Visa Applicant, in the latter case, by telephone link to Colombia and aided by an interpreter in the Spanish language.

2 (a) The Respondent has furnished a statement of facts and contentions dated 15 August 2002. Clause 3 contains the usual helpful chronology; it reads as follows:-

"3.1 The Visa Applicant is a 36 year old female born in Pereira in Colombia on 15 September 1961 (T5:31 and T6:55).

3.2 On 19 June 1997 the Visa Applicant was granted a visitor visa AG781195 (T5:34).

3.3 The Visa Applicant departed Colombia on 8 July 1997 (T5:33) and first arrived in Australia on 11 July, 1997. She resided in Australia from that time until her departure on 2 July 2000 (T37:165).

3.4 On 28 July 1997 the Visa Applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (T17:110, T5:31 and T:43).

3.5 On 24 December 1997 the Applicant sought review of the Delegate's decision by the Refugee Review Tribunal ("RRT") (T17:109).

3.6 On 4 June 1999 the RRT refused the grant of a protection visa to the Visa Applicant (T17:109-115).

3.7 On 17 July 2000 the Applicant applied for a provisional Spouse visa (UF subclass 309) (T37:163).

3.8 On 15 September 1997 the Visa Applicant met the Applicant at the Spanish Club, Liverpool Street, Sydney (T47:205-206).

3.9 On 10 October 1997 the Visa Applicant's visitor visa (AG781195) expired (T5:34).

3.10 On 2 December 1997 the Visa Applicant's protection visa application was refused by the Department (T11:96).

3.11 In March 1999 the Visa Applicant and Applicant moved in together (T29:214).

3.12 On 4 June 1999 the RRT handed down its decision refusing to grant the protection visa to the Visa Applicant (T17:109).

3.13 On 24 October 1999 the Applicant and Visa Applicant married (T38:181, T41:190 and T42:192).

3.14 On 13 February 2000 the Visa Applicant was interviewed at the Post in Bogota, Colombia (T47:205).

3.15 On 2 July 2000 the Visa Applicant applied for a Spouse visa (T37:163 and T38:181).

3.16 On 3 September 2000 the Visa Applicant was issued a Notice of Intention to Refuse Visa under section 501(1) (T61:257).

3.17 This decision was affirmed by the Minister by letter dated 29 May 2002 (T24:133).

(I note that, in reproducing the chronology, I edited it in very slight fashion so as to ensure that the terms "Visa Applicant" and "Applicant" always appear in capitalised form)

(b) As to the application of the Character Test, the Respondent's contentions are set out in clauses 6 to 13 inclusive; it is, I believe, necessary only for me to quote clause 6 of the Respondent's statement of facts and contentions which reads as follows:

("6. The Respondent contends that the Visa Applicant does not pass the Character Test based on the following general conduct:

(a) The making of false statements on her Incoming Passenger Card dated 11 July 1997;

(b) Obtaining a visitor visa despite her intention to stay in Australia beyond the term of the visa and apply for a protection visa.")

It is also relevant, I think, to refer also to clause 7 which records that at an interview on 13 February 2001 the Visa Applicant confirmed that it was her "sole intention to apply for a visitor visa for the sole purpose of applying for a protection visa" when she entered Australia.

(c) The Applicant did not file a statement of facts and contentions; he also did not file any witness statements. Mr Mullins did not object to the giving of evidence by each of the Applicant and the Visa Applicant and notwithstanding the fact that they did not file witness statements.

(3) In respect of the Applicant's evidence:

(a) He met the Visa Applicant at the Spanish Club in September 1997; a friendship developed which eventually resulted in a closer relationship. The Applicant and the Visa Applicant commenced living together at some time later and were married in March 1999. The Applicant said that they began living together in 1998 or 1999; the chronology to which I have referred indicates that they moved in together in March 1999.

(b) At a comparatively early state and at all events prior to their marriage the Applicant became aware of the fact that the Visa Applicant did not have permanent residence status in Australia.

(c) The Applicant said that he furnished the Visa Applicant with financial support from a date much later than that indicated by the Visa Applicant and in all probability when they started living together. The Visa Applicant's evidence was not consistent with that statement; she said that his support commenced very soon after they met in September 1997 and that it was with his support and at his urging that she gave up her job as a cleaner.

(d) The Applicant was asked whether if this case went against him he would join the Visa Applicant in Colombia. He made it clear that he would not do so; he said that Colombia is too dangerous. He has not visited the Visa Applicant in Colombia. The possibility of their being reunited in another Spanish speaking country in South America was considered as a possibility. Argentina, from whence the Applicant originally came, was mentioned as a real possibility.

(e) On 28 May 2002 the Applicant wrote a letter to the Tribunal; the third and fourth paragraphs of that letter read as follows:

"The reason given was, that she did not pass the Character Test. The reasons given why she did not pass the Character Test were construed in such a manner just for the sake of refusing a visa.

There is nothing in all the explanation given by the decision-maker, to indicate that Nelly, my wife, has done anything wrong or anything illegal."

The statement in that letter and in particular the third paragraph was of course ridiculous. The Applicant knew perfectly well that the Visa Applicant entered Australia as a visitor but with the fixed intention of remaining in Australia. His remarks were both ill-judged and wrong and toward the end of the hearing he withdrew them and apologised for making them.

4. Before dealing with the Visa Applicant's evidence there are a few matters of a preliminary nature which can conveniently be dealt with at this juncture:

(a) The Respondent accepts that the marriage between the Applicant and the Visa Applicant is genuine.

(b) It was also emphasised by the Respondent that the Visa Applicant while in Australia did not commit any illegal acts. When she worked as a cleaner she did so at a time when she was possessed of a visa entitling her to do so.

(c) Clause 17 of the Respondent's statement of facts and contentions reads as follows:

"The Respondent contends that the Visa Applicant's actions in making a bogus protection visa application and seeking review and Ministerial intervention with regard to that application should be viewed seriously, having regard to the waste of Departmental resources on the claim and the potential delayed hardship caused to genuine protection Visa Applicants."

(This clause has also been edited in the manner set out previously in relation to the chronology.)

Mr Mullins (correctly) withdrew that contention.

(d) (i) Before coming to Australia the Visa Applicant became involved in Colombia with members of the National Liberation Army ("ELN"). The Visa Applicant immediately after coming to Australia applied for a protection visa. The Visa Applicant's claims in respect of a protection visa are summarised in clause 3.1 of the findings of the Protection Visa Decision Records (T11 at T page 97) reading as follows:

"1. The Applicant worked since 1993 as a warehouse supervisor and in the course of her employment she became friends with two girls who worked at the warehouse. She also became friends with their boyfriends meeting them at a party in November 1996 but after about five months she discovered that they were members of the National Liberation Army (ELN).

2. In March 1997 these two men ordered the applicant to steal merchandise to the value of about $A500 from the warehouse each month. One of the men said that he had been ordered by his boss in the ELN to ask the applicant to work for the revolutionary cause. The men told her that she and her family would be in danger of being killed if she did not co-operate.

3. The demands made by these men soon escalated and the Applicant refused to co-operate further. She and her family determined to live normal lives despite the fact that the death threats continued.

4. In May the Applicant was walking home from church with her children when several shots were fired from a passing car, one of the Applicant's sons was killed. The Applicant and her other sons escaped.

5. The Applicant and her family fled from their home in Armenia (sic) and hid at a relative's farm until she had finalised documentation to depart Colombia. Her husband and two sons are still in hiding.

6. At some stage the Applicant reported the threats to the police despite the claim that the guerillas had told her that to do so would result in death for the Applicant and her family."

(This inset has also been edited in the manner set out previously in this decision).

(ii) The protection visa application failed because the Visa Applicant was held not to be a refugee within the provisions of the Refugee Convention.

(iii) That decision was approved by the Refugee Review Tribunal on 2 December, 1999. I refer here to T17 and in particular T page 113 where the Refugee Review Tribunal said in the first paragraph under the head of Findings and Reasons:

"For the purpose of this decision I am prepared to accept the Applicant's claims in full. I accept that she was a supervisor at a clothes store and that she was coerced by members of the Ejercito Liberacion Nacional (ELN or the National Liberation Army) in early 1997 to pilfer clothing supplies from the store. I accept that she agreed out of fear and that (according to her oral evidence) she complied with the ELNs demands on two occasions in March and April 1997. I accept that thereafter she refused and as a result she received threats to her life and her son was accidentally killed. I accept that out of fear she and her family left their house, she eventually departed Colombia and her children and husband have remained in hiding in Colombia."

(iv) A subsequent application to the Respondent under section 417 of the Migration Act 1958 ("the Act") was also unsuccessful.

(v) It is relevant to note that the Refugee Review Tribunal accepted the Visa Applicant's claims but could not be satisfied that her fears were Convention-related.

5. As to the evidence of the Visa Applicant herself:-

(a) After the killing of her son (and who was her youngest son) the Applicant feared for her own safety. After discussions with her family and including her de facto partner (incorrectly previously referred to as her husband) with whom she was then sharing a home but from whom she was separated according to her evidence, the Visa Applicant felt that she must leave Colombia.

(b) She consulted a travel agency (Tours Plegar) in Colombia in order to apply for a visa to the United Kingdom. That travel agency, which is no longer in existence, suggested to her that Australia was to be preferred as a country of refuge and that she should apply for a visitor's visa and then, when in Australia, apply for a protection visa.

(c) The visitor's visa application was not in evidence before me; however it is reasonable to infer that the visa applicant stated (untruthfully) that she wanted to come to Australia as a visitor only.

(d) In her landing card (ST1) dated 11 July, 1997 the Visa Applicant stated that she was a visitor or temporary resident and that her intended stay was a matter of days. In her evidence before me she said that she completed the landing card to reflect an amount of $US2000 held by her. ST1 contains no such indication but it is conceivable that that amount is reflected in a Customs declaration which was not before me.

(e) The Visa Applicant's evidence on this aspect at least was consistent throughout and including at interviews with Migration authorities. She agreed that at all times she came to Australia as a visitor but with the fixed intention of remaining in Australia. It follows of course that in relation to both the visitor's visa application and the landing card the Visa Applicant was on the balance of probabilities in breach of section 234 of the Act; the maximum penalties prescribed are such that these breaches must be treated as serious.

(f) There were some inconsistencies in the Visa Applicant's evidence; there were aspects of it which were vague and there were also inconsistent aspects. In this regard:-

(i) Prior to the death of her youngest son her other two sons (now aged 23 and 18 respectively) were cared for by others. While the Visa Applicant was in Australia those two sons were cared for variously by the de facto partner to whom I have referred, her sister who lives in another city in Colombia and her mother and sometimes by two of them; that evidence was at times somewhat confused.

(ii) The Applicant described his wife as a hairdresser; she said in the landing card that she was a manager of personnel; she appears however to have been a manager of warehouses.

(iii) Her evidence as to her relationship with her de facto partner was in some respects confusing.

(iv) She said in an interview with the Immigration authorities that the applicant would, if this case went against him, join her in Colombia; the Applicant's views were vehemently to the contrary.

(v) The Visa Applicant's evidence as to financial matters were in many respects confused; she apparently came to Australia with $US2000. If she stopped work in September 1997 but only moved in with the Applicant some considerable time later (and probably in March 1999) it is hard to see how that amount sufficed for all of her needs.

(vi) The Visa Applicant said that the application related not only to her but also to her younger surviving son. The Applicant did not agree that this is so, and confirmed that he sponsored only the Visa Applicant and not her younger son or for that matter either of her sons. This confusion was resolved when the Visa Applicant confirmed that her spouse application relates to her and not her son.. (The other older son now lives in Spain).

(g) In some cases the Visa Applicant's memory was meticulous; she could remember the exact dates of relevant events; at other times and in relation to matters of importance she said that she had no recollection.

(h) The Visa Applicant did not accept that she had done anything wrong. Her view was that necessity had driven her to seek refuge in Australia thus compelling her to apply to enter as a visitor. As she saw it she behaved legally while in Australia and could see no reason why she and the Applicant should continue to be separated. She was not prepared to accept that her statements to the authorities as regards her visitor's visa and when she landed in Australia were illegal.

6. I turn now to deal with "Direction-Visa Refusal and Cancellation under Section 501-No. 21" (referred to in these reasons as the "Direction"). Clause references in this clause 6 should be construed as references to numbered clauses in the Direction.

(a) The Visa Applicant's breaches as referred to in clause 6 of the Respondent's statement of facts and contentions fall within clauses 1.9(a) and 1.9(b) of the Direction. Moreover they must be classed as serious within clause 2.6(c). This must be so having regard to the maximum penalties prescribed for breaches of section 234 of the Act. These factors coupled with the fact that some of her evidence before me was unreliable have the effect that she fails the Character Test; I note that there was no evidence of recent good conduct within clause 1.11.

(b) I am accordingly required to consider the discretionary powers contained in part 2 of the Direction.

(c) Clause 2.3 provides that the primary considerations are:

"(a) The protection of the Australian community and members of the community;

(b) The expectations of the Australian community;

(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."

Clause 2.3 is not relevant in this case.

(d) Clause 2.3(a) must be read in conjunction with clause 2.5 which provides:-

"2.5 The factors relevant to the assessment of the level of risk to the community of the entry or continued stay of a non citizen include:

(a) The seriousness and nature of the conduct;

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

(c) Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrents)."

(e) I do not believe that the Visa Applicant poses any threat to the Australian community and I consider moreover that the risk of a recidivism is minimal. It must be remembered that this is a case where, although the Visa Applicant's protection visa application failed, her claims were accepted. She had a genuine fear for her own safety; the genuineness of that fear can be gauged from the fact that her youngest son was killed. The facts in this matter are not perhaps totally unique (a word mentioned in this context in closing submissions) but they are rare and at least to an extent sui generis. So many protection visa claims are found to be bogus; this application did not succeed but it was not bogus. It is often said, in the context of deterrence that to reward an immigration offender with a visa would send entirely the wrong message; however it is my view that in this case, which turns entirely on its own facts, deterrence is unlikely to be a relevant issue.

(f) As to clause 2.12 I accept of course that the Australian community expects non-citizens to obey the law in Australia. However, it is also my view that an informed Australian community would expect me to interpret the direction in a manner which is humane. While the community would in my view take an adverse view in relation to a visitor entrant who then sought to remain in Australia on the basis of a bogus refugee claim, it would be sympathetic to the claims of a visitor who was driven to seek refuge (although not a refugee in the Convention sense) on grounds of genuine fear.

(h) Hardship within clause 2.17 is a relevant factor. It is less significant than is sometimes the case in this matter firstly because of the Applicant's awareness of the Visa Applicant's situation and secondly because a life for them in another Spanish speaking country in South America (perhaps Argentina) is entirely feasible.

(i) The balance required by part 2 of Direction 21 leads in my view to a finding in favour of the visa applicant. This is so in my view having regard in particular to the fact that the primary considerations are not against her.

7. Accordingly the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a sub-class 309 spouse visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Nelly Henao Ospina.