Uranek and Minister for Immigration and Multicultural Affairs [2002] AATA 57 (1 February 2002)

Last Updated: 4 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/484

GENERAL ADMINISTRATIVE DIVISION )

Re BOZENA URANEK

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date 1 February 2002

Place Brisbane

Decision The decision under review is affirmed.

[Sgd Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration - visa refusal - "good" character - applicant involved in bogus schemes to establish marriage relationship with Australian citizen - providing false and misleading information - discretion.

Goldie v Minister for Immigration and Multicultural Affairs (1991) FCA 1277

Migration Act 1958 - s501

REASONS FOR DECISION

1 February 2002 The Hon C R Wright QC., (Deputy President)

1. The visa applicant, Abdelali Byasse, a Dutch citizen applied for a spouse visa, Class UF on the basis of his marriage to the review applicant, Bozena Uranek an Australian permanent resident. The "marriage" occurred at Kaikohe in New Zealand on 9 May 1997. At that time the visa applicant was legally married to an Australian citizen, Penny Louise Le Breton. That marriage took place on 8 March 1996 at the District Registrar's office in Perth, Western Australia.

2. The visa applicant's application for a spouse visa was lodged with and processed by the Australian Embassy in Warsaw, Poland. On 21 May 2001 it was refused by the Minister's delegate, Ms O'Brien. On 6 June 2001 Ms Uranek lodged an application to review that decision. A review hearing took place before me at Brisbane on 10 December 2001. The review applicant attended in person and gave sworn evidence. The visa applicant gave evidence on affirmation by telephone from Fiji and Magda Dziekanska, a migration officer stationed at the Warsaw Embassy gave evidence orally by telephone on affirmation and tendered a written statement (Exhibit R1). A large number of documents consisting of correspondence between the visa applicant and his children, records relating to their academic prowess, and copies of sundry correspondence between the applicants and various officials were tendered by the review applicant (Exhibit A1). The "T" documents were also taken into evidence.

3. The visa applicant was born in Casablanca, Morocco on 8 January 1953. He is now 49 years of age. In 1982 he married Francois Michousi in Belgium. This marriage was dissolved on 6 June 1983 in Den Haag. His second marriage was to Susan Barrett in Honolulu, Hawaii in 1984. They were divorced at Stockton, California in 1986. In 1986, the visa applicant married Momni Nazha in Morocco. The couple had 2 children, Youssef (born 22 July 1987) and Marouane (born 11 November 1990). These children are presently living with the visa applicant's mother in Holland. The visa applicant and Momni Nazha divorced in 1993. The visa applicant's fourth marriage was to Penny Louise Le Breton. All the evidence points to that marriage as still subsisting. There is no evidence that it was ever dissolved. The visa applicant and the review applicant acknowledge one child of their bigamous union, Konrad, born on 27 May 2000 in Australia. The respondent submits that there is circumstantial evidence to suggest that the visa applicant is also the father of two of the review applicant's other children, Jonas born 20 January 1993 and Lucas born 28 November 1994.

4. The review applicant was born on 7 October 1963 at Warsaw, Poland. In 1983 she married Marcel van der Zwan, a Dutch citizen. The couple had one child Agata, born 24 October 1983. In 1985, the review applicant married Abdellatif Byasse, a Moroccan citizen, and brother of the present visa applicant. She sponsored her husband Abdellatif to live in Holland where they cohabited until 13 July 1992 when they divorced. The review applicant claimed that the divorce was brought about because she discovered only after their marriage, that her husband was also married to the Moroccan woman, Momni Nazha, who was still living in that country. The review applicant had 2 children during the currency of their marriage - Karim (born 7 May 1989 - now aged 12) and Nathalie (born 8 April 1991 - now aged 10). As previously mentioned there is a dispute as to the paternity of Jonas and Lucas.

5. The review applicant claimed that the visa applicant's brother Abellatif Byasse was the father of both Jonas and Lucas. In the overall context of the visa applicant's case it was important that I should accept that the visa applicant was not the father of these children. Both applicants insisted that at the time of conception and birth of these 2 children there was no romantic or sexual relationship between them. If such a relationship did in fact exist it would tend to give considerable support to the allegations of Penny Le Breton, Carmelo Borg and Rosemary Mattock (which will be referred to later in these reasons) which were to the effect that the applicants were living in a de facto relationship with each other both at the time that Abdelali married Le Breton and the time Bozena Uranek claims she was living de facto with Borg.

6. As already mentioned, the review applicant was divorced from Abdellatif on 13 July 1992 and Jonas and Lucas were born on 20 January 1993 and 28 November 1994 respectively. In her residency application based upon her alleged cohabitation with Borg (T documents at p.80) the review applicant says there were only 2 children of her marriage to Abdellatif and she gives the "family" name of Uranek, rather than Byasse to both Jonas and Lucas. Whilst it may be argued that Jonas and Lucas are not strictly "children of the marriage", even if fathered by Abdellatif after the divorce, it seems extraordinary to me that such a distinction would be made by the review applicant and even more extraordinary that she would assign them her maiden surname rather than that of their father. In the Birth Certificates (T documents pp.64 and 65) the father of neither child is named. Whilst by no means conclusive these circumstances taken with the Le Breton and Borg/Mattock allegations tend to support the respondent's contention that the visa applicant is the father of both children.

7. The review applicant claims that in 1995 she entered into a de facto relationship in Australia with an Australian citizen Carmelo Borg. She says that this was a genuine de facto relationship which lasted about 6 months and only came to an end when she discovered that Borg was sexually abusing her eldest daughter Agata. It was on the basis of the DIMA's acceptance of her claims to have cohabited with Borg that she was subsequently granted permanent residency in Australia. This decision was made in December 1996 notwithstanding DIMA's possession of a detailed statutory declaration by Borg (T documents 179-182) and a brief (and apparently incomplete) statutory declaration by his former de facto partner, Rosemary Mattock (T 178) alleging that the visa applicant and review applicant had been parties to a fraudulent scheme to secure Australian residential rights for the review applicant by claiming that she was in a de facto relationship with Borg when she was not. It seems from a review of the material available to me for the purpose of the present proceedings that these very serious allegations were never pursued or tested by DIMA officials, as they should have been.

8. It is my opinion that the question of the review applicant's current status as a permanent resident should be re-examined by DIMA in light of the other evidence contained in the T documents, in particular the lengthy statement of Penny Louise Le Breton dated 30 April 1996 (T documents pp.163-169). In that document Le Breton alleges, (inter alia) that the visa applicant approached her with a similar fraudulent scheme, viz that they should go through a form of marriage so that he could gain the right to "stay in Australia". It was part of this scheme, according to Ms Le Breton, that the visa applicant would pay off her debts and pay the rent on a flat in Perth, which she could use, but that they would not live together as man and wife. She also said that the visa applicant told her "his wife and (five) children were in Queensland". If he said this, (which he vehemently denies) the only sensible inference must be that he was referring to the review applicant and her children. Borg in his statement claimed that when he met them the review applicant and visa applicant presented themselves to him as de facto husband and wife.

9. The marriage between the visa applicant and Le Breton is, in my opinion, an important issue in this case. I am aware of course, that the marriage was not used by the visa applicant to base an application for permanent residency in Australia, but whether one accepts his version of events, or her version, it is clear that, within a couple of days of the marriage ceremony, any prospect of successfully claiming that there was a continuing relationship between them, had been destroyed. Accordingly, it could be inferred that the use of the marriage as a basis for permanent residency was frustrated by supervening events rather than being voluntarily relinquished by the visa applicant. The visa applicant strongly denied the truth of Le Breton's allegations.

10. Mr Gallo, counsel for the respondent informed me that neither Le Breton nor Mr Borg could be located and, consequently, I heard no oral evidence from either of them.

11. The visa applicant said this in a letter to a departmental officer on 4 April 2000:

"I met Penny Le Breton in 1995 at the hostel in Perth. She had her daughter by her ex-boyfriend, father of her daughter, in New South Wales. She had some problems with the police (some fine bills in relation to her driving a car or something. I don't remember well) therefore she prefers to stay at the hostel.

She was helping me with my English and she was telling me her stories and I told her mine. I told her also about my plans of making easy money by investing in land. At the time I had an American friend who started this business in Costa Rica and was asking me to be his partner. Penny advised me to invest in Australia and I told her I didn't have enough money. At the time, 20,000 US$ invested in Costa Rica would give me 100% interest for 5 years. Of course it was a dream! One day, the hostel organized a barbecue and there were plenty of young people at the party, especially one of the travellers, an English one was very much interested in Penny and she rejected him. In the late evening she came to me and asked if I was interested to go for a drink. After the bar we were both drunk and I didn't even know it happened, we was sleeping together in the boys room. She was actually in my bed. Of course I was dazzled by her good looks, her reserve and especially her silence. But I wasn't in love with her. And since this day, she became my girlfriend. When I was leaving Australia to Europe, she just mentioned that she would love to see Europe. I left her Perth and we promised to keep in touch. Back home I received from her few letters in which she told me about her new job in Perth and her determination to save money for Europe. She never expressed in her letters that she was in love with me and neither did I. But, one day, she did call my home and asked me why couldn't I live in Australia to make her life easier. I explained her my reasons but in the end I understood that she was just affected by the death of one of her friends in N.S.W.

But when I came back again to Australia in late December, I called her for the New Year and she was surprised and upset that I did not inform her earlier about my coming back to Australia. But I promised to visit her at the end of January. When I saw her again, she dropped herself in my arms and I held her tight in my arms. I felt again intense attraction to her and asked her, while she was still in my arms, that I wanted to make love to her. She first hesitated to respond and I told her that I was sorry and if she had a new boyfriend? She answered to me no and that she wanted me too. We passed the afternoon making love and speaking about our lives. I told her I was in love with her body and she replied that she was not yet in love with me but she thought she could learn to love me and she added that she was fed up with Australia and wished to know me more. I proposed to her then to come with me to Holland and I would help her. She was delighted by the idea (especially as her mother just married a Dutch man) but first she seemed not to believe it. We were seeing each other for a while and one day she asked me if I would marry her. I answered I would be honoured! And that's how we decided together to get married.

I wanted first to marry her in Holland but she told me that she can't leave Australia before paying her fine bills, plus her job contract ended in the middle of June. My visa expired on the 16^th of March and we got married on the 8^th March because I wanted to be sure she'd wine [sic] and encouraged her to come to live with me in Holland.

We married on Friday afternoon, we spent the night together and Saturday morning she left me for her job. But, on Saturday afternoon I saw her by the post office in Perth holding and kissing with a boy. I called her the whole of Saturday evening and the Sunday evening and she wasn't answering. Monday the 11^th March, in the morning, I went back to the place where we had been married and asked to cancel the marriage. I then extended my visitor visa for another three months in order to visit some other places and forget my adventure with Penny. I never got in contact with her anymore.

When I was leaving Australia, the immigration officers, who said they had orders to check me about my visiting Australia, stopped me. They weren't precise about what it was about exactly, because the person who was holding the information was absent. I was held till my flight was leaving and at the end they handed me some papers with the name of the person I had to contact when I was back home. In the papers I was accused of trying to get permanent residency. I must say I was surprised by the accusations because I never asked for permanent residency in Australia or anywhere else. So I denied the accusations and wrote him about my good intentions of visiting and leaving Australia and that my life was in Holland. I never, ever thought about this marriage, which was just by accident."

12. In essence the visa applicant repeated this story during the course of his oral evidence. I have considered his evidence and that of the review applicant with care. I find his evidence to be implausible and completely unconvincing notwithstanding the absence of Borg, Mattock and Le Breton from the witness box. It was suggested that Borg may have decided to falsely accuse the two applicants of conspiring to produce a bogus case to the immigration authorities to divert or pre-empt an investigation into allegations of his sexual abuse of Agata. This argument has two edges however. It is just as likely that the abuse allegations were manufactured by the review applicant to divert attention from the trouble which could be anticipated by Borg reporting the bogus scheme to DIMA.

13. I find it of considerable significance that Borg and Le Breton should each present accounts of their dealings with the two applicants which tends to show a continuing de facto relationship between them long before that which both now claim only commenced after their relationships with Borg (1995) and Le Breton (1996) respectively had ceased.

14. The accounts of Borg and Le Breton if accepted also disclose a similar motivation and modus operandi by the two applicants in seeking a residential foothold in Australia. It would be remarkable to me if Borg and Le Breton, who, presumably, are complete strangers to each other, should both manufacture false stories implicating themselves and the applicants in the bogus schemes, which they described. There was no suggestion that Borg and Le Breton had any opportunity or reason to conspire with each other to produce false accusations against the applicants. I have already mentioned a possible motive by Borg to do so, but neither applicant was able to suggest a motive for Le Breton to make untrue allegations. The question whether or not Borg sexually assaulted Agata and whether or not he was a co-conspirator with Uranek and the visa applicant to mislead DIMA are quite separate and distinct issues, and should be treated as such.

15. I believe it to be highly likely that the two applicants came to Australia seeking a way to acquire residential status. Whether Borg was approached as their first prospective co-conspirator I am unable to say. However, I am satisfied that they conspired with Borg, as he alleges, and that the visa applicant conspired with Le Breton, as she alleges, and that their purpose was to dupe DIMA into according them permanent residency in this country.

16. These findings are of themselves sufficient for me to find adversely to the visa applicant upon the issue of good character even though he did not follow through after the bogus marriage to Le Breton by making a formal application for spousal residency based on that marriage.

17. There are however several other discreet issues bearing upon the character question which were raised and require comment.

18. For present purposes, I must accept that the review applicant is a legitimate Australian permanent resident, whether or not that status is subsequently reviewed and changed as a result of the remarks and recommendations which I have made above.

19. The two applicants' bigamous marriage in New Zealand is of significance but in a way which is different from that suggested by the counsel for the respondent. Certainly the willingness of the two parties to commit the offence of bigamy in New Zealand and the visa applicant's unacceptable attempt to explain that impacts upon his character and credibility, but for him to join the review applicant in Australia and cohabit with her in this country would not itself be an offence as was contended. In paragraph 19(b) of the respondent's Statement of Fact and Contentions it was submitted that if the visa applicant entered Australia "he would be breaking the law by entering whilst in a bigamous relationship". To bigamously marry in New Zealand would be a crime in New Zealand. It is no crime to live in Australia with a person with whom a bigamous marriage has been entered into elsewhere. The visa applicant said that he thought his marriage to Le Breton had been "cancelled". I do not believe him.

20. The Minister's delegate whose decision is under review found that the visa applicant had made several deceptive statements to the Department, both in respect of his present application and an earlier 956 Business visa application made in Los Angeles on 10 April 2000. These matters were taken into account by the delegate in assessing his character.

21. In April 2000, the Australian Consulate-General in Los Angeles refused the visa applicant's request for temporary entry into Australia for business purposes as he was assessed as failing the s501 character test. In his application for a business visa the visa applicant referred to the review applicant as his "sister-in-law" rather than his de facto wife or partner, and made no claim to be in any sort of marriage or parental relationship with an Australian citizen or permanent resident. The visa applicant was asked about this proposed visit during the Tribunal hearing, and his explanation that he wanted to come here to purchase houses as investments for his brother was completely unconvincing. I believe that in all probability he wanted to enter Australia to reunite with the review applicant and in some way advance his claim to permanent residency based upon this reunion.

22. His failure to disclose his claimed long term relationship with the review applicant in the business application may indicate one of two things - either that the claimed de facto relationship with the review applicant does not exist in reality which would, of course, by itself establish that his present claim to a spouse visa is fraudulently based, or alternatively that he attempted to mislead the migration officials dealing with his temporary business entry application. Either way adverse aspersions are cast upon his character.

23. His present spouse visa application was refused by Ms O'Brien on character grounds. She accepted that the visa and review applicants had a genuine de facto relationship. Whilst it is possible to entertain some doubt about this claim notwithstanding the evidence as to the visa applicant's paternity of 3 of the children, I am prepared to make the same assumption. However, in his spouse visa application, the visa applicant declared that the information provided therein was completely correct and up-to-date in every detail. The visa applicant failed to provide accurate details of his previous marriages. I believe this was deliberate and was intended to mislead. I accept completely the statement by Magda Dziekanska (Exhibit R1) and her oral evidence. I reject the visa applicant's evidence wherever it conflicts with that of Ms Dziekanska.

24. Ms Dziekanska had a clear recollection of her dealings with the visa applicant, due in part to the extraordinary way in which he conducted himself at the time. There is no need to set out the details of their encounter. I do not accept that the visa applicant had been told that he could provide details of his prior liaisons or marriages after lodging his application. This I think is another illustration of the tangled and tortuous web of deceit which the visa applicant has woven over the years in an attempt to secure Australian permanent residency.

25. In my opinion the visa applicant has failed to establish that he is of good character within the meaning of s501 of the Migration Act 1958. In reaching this conclusion I have borne in mind the Minister's Direction No. 21 in relation to Visa Refusal and Cancellation under s501 issued in August 2001.

26. The visa applicant fails the test in respect of his past and present general conduct as specified in s501(6)(c). The concept of good character for the purposes of s501 was authoritatively stated by the Full Federal Court of Australia in Goldie v Minister for Immigration and Multicultural Affairs FCA 1277.

27. The question remains whether a discretion should be exercised in the visa applicant's favour notwithstanding the adverse assessment on the character test. Part 2 of the Minister's Direction must be considered in this regard.

28. I see no need to reproduce those directions in detail. The primary considerations require assessment of the relevant conduct by the visa applicant in relation to the protection and expectations of the Australian community and the best interests of any child involved in a relevant relationship.

29. The visa applicant's conduct has been very serious in my opinion. It has involved a concerted attempt to subvert Australian immigration laws over an extended period. Similar conduct could well be repeated if he is admitted to this country - not so much in relation to migration matters perhaps, but more likely in relation to other matters such as welfare assistance and the like. Conduct of the kind giving rise to the adverse character findings cannot in my opinion be seen to be rewarded by achieving its purpose. I believe that in a situation such as the present general deterrence is of prime importance. It is difficult to see any mitigating factors whatsoever. The visa applicant has shown a sustained contempt for the laws of Australia as well as New Zealand.

30. As to the best interests of the children, it is noted that both applicants have Dutch citizenship. The youngest child was born in Australia and has Australian citizenship. However it is clear that Konrad would also be recognised as a Dutch child if he returns to the Netherlands with his parents. The visa applicant also holds Moroccan citizenship. The visa applicant had 2 children by his Moroccan wife and those children now live with his mother in the Netherlands. His Moroccan wife from whom he is now divorced Lives in France.

31. The visa applicant claims to spend much of his time travelling the world dealing in antiquities. Whilst it is plain that he travels a good deal I entertain considerable doubt as to his activities.

32. The review applicant claims that she is having difficulties looking after the 5 children who live with her in Australia. I can see little or no reason to conclude that the welfare of the children, or any individual child, dictates that a discretion should be exercised allowing the visa applicant to settle in Australia. In my opinion, the best interests of all concerned would best be served by both applicants returning to the Netherlands, re-establishing the children now living in Australia with their half siblings and their broader family group who are now living in the Netherlands.

33. Although she is an Australian permanent resident, I do not regard the review applicant as having a strong connection with Australia, except in a financially dependent sense. She has no relatives in this country and neither she nor the visa applicant has been in paid employment here. The review applicant has spent a good deal of time outside Australia since gaining her permanent resident status. There is no reason to suppose that the visa applicant would find it easy to obtain employment here. In my view a discretion should not be exercised in the visa applicant's favour.

34. The decision under review is affirmed and, as already mentioned, I strongly recommend that Ms Uranek's status as a permanent resident be reviewed pursuant to the visa cancellation provisions of the Migration Act 1958.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed: K L Miller (Personal Assistant)

Date/s of Hearing 10 December 2001

Date of Decision 1 February 2002

Counsel for the Applicant Applicant appeared in person

Solicitor for the Applicant

Counsel for the Respondent Mr Dominic Gallo

Solicitor for the Respondent Blake Dawson & Waldron