|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 18 December 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
|
|
Re |
MICHAEL RAFFERTY |
|
|
And |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
Tribunal |
Mr S P Estcourt QC., (Deputy President) |
Decision
|
|
The decision under review is set aside and the matter is remitted to the respondent with a direction that Ms Lorklang's visa application not be refused on character grounds.
|
[Sgd S P Estcourt QC]
CATCHWORDS
Immigration - spouse visa - subclass 309 (provisional) - character test - whether applicant working unlawfully - whether applicant lied to immigration official - failure to renew bridging visa - decision under review set aside.
Migration Act 1958 - s501, s235
Re Tuino and Minister for Immigration and Multicultural Affairs 2001) AATA 92
Re Naufahu-Fauonuku and Minister for Immigration and Multicultural Affairs (2001) AATA 242
Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277
Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 663 FCA
15 December 2003 |
Mr S P Estcourt QC., (Deputy President) |
|
1. The Tribunal decides in favour of Michael Rafferty in this case. His appeal is against a decision of the Minister for Immigration and Multicultural and Indigenous Affairs who on 6 December 2002 refused a visa to Mr Rafferty's wife, Vassna Lorklang, to allow her to live in Australia with her husband.
2. The reason for the Tribunal's decision is that the Tribunal rejects the allegations made against Ms Lorklang's character as unfounded and is satisfied that Ms Lorklang passes the "character test" posed by s501 of the Migration Act 1958 ("the Act").
3. The allegations made by the Minister, which raise the only concerns about Ms Lorklang's character in this case, are threefold. They are:
(a) that on 1 July 1999 Ms Lorklang was found working in Australia whilst the holder of a visa which did not permit her to do so;
(b) that she lied to an immigration official in that she said at an interview on 15 March 2002 that she had never worked in Australia; and
(c) that on 24 June 2000 Ms Lorklang was found not to hold a current bridging visa, whilst remaining in Australia.
4. It will be readily seen that allegations (a) and (b) are inter-dependent and I will turn to a consideration of the evidence relevant to them in a moment. First, however it is convenient to dispose of allegation (c).
5. On 24 July 2000 immigration officials spoke to Ms Lorklang at premises at 678A Sydney Road, Brunswick and it was found that she did not hold a current visa. She had an entitlement to a bridging visa because she had an outstanding request for Ministerial intervention pursuant to s351 of the Act in respect of the refusal of her appeal to the Migration Review Tribunal in relation to an application for permanent residence. Upon those immigration officials verifying her circumstances Ms Lorklang was granted a bridging visa in association with her request under s351 of the Act.
6. Now, of course, remaining in Australia without a current visa permitting such stay, may amount to a serious offence against the Act, notwithstanding that such an offence is punishable under s235 of the Act by a monetary penalty and not by imprisonment. Whether or not the offence will be regarded as a serious offence depends on the circumstances of the particular case, see for example, Re Tuino and Minister for Immigration and Multicultural Affairs (2001) AATA 92 at paragraph 10(d) and Re Naufahu-Fauonuku and Minister for Immigration and Multicultural Affairs (2001) AATA 242 at pargraph 8(d).
7. In the present case however, the unchallenged and uncontradicted evidence of Ms Lorklang was that she was required to get her bridging visa extended every three months and that she had simply forgotten to get it extended. In the Tribunal's judgment that fact, if it is to be taken on its own, (as the reasons which follow as to the other allegations against Ms Lorklang demonstrate it must), does not reflect at all on her "enduring moral qualities", which are the relevant subject of inquiry for the purposes of the "character test" (see Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277 at paragraph 8).
8. I turn now to the allegation that on 1 July 1999 Ms Lorklang was found working in Australia, upon which the remaining allegation that she lied to an immigration official depends. Evidence was given as to this by Detective Senior Constable Justin Michael Boyer.
9. Detective Boyer was co-opted on the afternoon shift of 1 July 1999 to a vice squad operation dubbed Operation Malthouse, which operation was targetting illegal brothels. As part of this team, Detective Boyer, in company with another more senior detective who did not give evidence, visited between 6 - 10 suspected illegal brothels to make observations.
10. According to his day book Detective Boyer entered premises at 678A Sydney Road, Brunswick at about 1630 hours and left at 1634 hours when he received a "Code 1" to render assistance elsewhere. His entry for this visit reads as follows:
"1630 C/S 678A Sydney Road, IBW, S/T Bryan A Panther (3.6.62) 10/53 Mom's St OWT.
S/T owner/manager.
Sujitra Kingkaewklang (7.8.63) of L/N 53238735
S/T female claims to be visitor Vassna Lorklang (5.2.63)
1634 C/1"
11. The next morning at 0800 hours Detective Boyer completed his police diary for the previous shift entering what was plainly intended to be the significant intelligence gleaned from the random checks of suspected illegal brothels the previous day.
12. The relevant entry from Detective Boyer's diary, which incorrectly suggests that he spent 10 minutes at 678A Sydney Road and not 4, reads as follows:
"1629 C/5 678A Sydney Road, IBW S/T Manager of illegal brother, Sujitra Kingkwaeklag (sic) (7.8.63) address U/K female claimed to speak little English and had just moved address, now address U/K. Female was not co-operative. Premises is obviously a busy illegal brothel.
1639 C/1."
13. From those day book and diary entries, one might reasonably conclude that whilst Detective Boyer was sceptical about Ms Lorklang being a visitor, given his use of the phrase "claims to be visitor", he had no other material to indicate that she was a worker in what he regarded as a busy illegal brothel and he did not regard Ms Lorklang as a person who warranted recording in his police diary. However on 29 May 2003 he made a written statement concerning the events of 1 July 1999 in which he stated as follows:
"At approximately 4.29 pm, Matthews and I attended a suspected illegal brothel situated at 678A Sydney Road, Brunswick. Once there Matthews and I entered the upstairs area and spoke with a female I now know to be Sujitra Kingkaeklag (sic) (7/8/63), Kingkaewklag stated she was the manager of the premises which operated as a "therapeutic" massage, and that she had one worker on hand at this time. Kingkaewklag then introduced a female who stated her name was Vassna Lorklang. I introduced myself to Lorklang as a Detective from the Vice Squad. Lorklang was very uncooperative and would not produce any photographic identification. Lorklang claimed she could not speak English ..." (emphasis added)
14. Detective Boyer's written statement is remarkable in that it was prepared 4 years after the events which occurred and yet it deviates substantially from the primary material available to him to assist in its preparation, namely his day book and his diary. I refer to the fact that the written statement omits to refer to the fact that Ms Lorklang was recorded in the day book as claiming to be a visitor and yet includes material not included in either the day book or the diary, namely that Ms Kingkaewklang stated "that she had one worker on hand at this time" and "Kingkawklag (sic) then introduced a female who stated her name was Vassna Lorklang" (i.e. implying that Ms Lorklang was that worker).
15. Notwithstanding that Detective Boyer claims to have an independent recollection of this particular afternoon because, these were the only women who "gave him a hard time", I would have difficulty in accepting the reliability of his written statement, as opposed to his primary documents, even if Ms Kingkaewklang and Ms Lorklang had not given evidence contradicting the written statement in a material respect.
16. I say this because I have grave difficulty accepting that even a trained observer would be likely to remember, in the level of detail documented in Detective Boyer's written statement, events he had not been asked to remember, events which were routine, and events which occupied less than 4 minutes 4 years earlier.
17. Ms Lorklang gave evidence that on 1 July 1999 she was visiting Ms Kingkaewklang at the premises 678A Sydney Road, which she understood to be a "beauty parlour and massage place".. Her unchallenged and uncontradicted evidence was that Ms Kingkaewklang was a friend of hers for over 30 years and that they had grown up in the same village in Thailand. She said that at the time the police visited on that afternoon she was watching television in the kitchen.
18. Ms Kingkaewklang gave unchallenged and uncontradicted evidence that she had known Ms Lorklang for over 30 years. Her evidence was that Ms Lorklang was not and had never been employed at the premises. Ms Kingkaewklang said that she told the police that she had one worker employed at the premises, a Thai girl who is no longer living in Melbourne.
19. I prefer the evidence of Ms Kingkaewklang and Ms Lorklang to that of Detective Boyer for the following reasons:
(a) it is plain that Ms Kingkaewklang and Ms Lorklang were lifelong friends which provides a proper basis for Ms Lorklang visiting Ms Kingkaewklang and the time of day was not inconsistent with a visit by a friend.
(b) the most contemporary documentary evidence, that is Detective Boyer's day book, records that Ms Lorklang claimed to be a visitor.
(c) Detective Boyer's evidence was that he did not go into any of the rooms where the employee Ms Kingkaewklang said she had and who Detective Boyer says he didn't see, might have been.
(d) Detective Boyer's evidence was that Ms Lorklang came out of a room which was like "a little tea room or a waiting room" which is consistent with Ms Lorklang's evidence that she was in a "kitchen". He did not go into that room.
(e) Detective Boyer's evidence in his statement that he was introduced to Ms Lorklang as a worker by Ms Kingkaewklang finds no foundation in the primary documents and his statement was made 4 years after the event. I repeat what I have said earlier about that.
(f) The accuracy of Detective Boyer's written statement is brought into question by his failure to include Ms Lorklang's assertion that she was a visitor.
(g) Detective Boyer's recollection and assumptions may be, not unreasonably, coloured by the fact that the encounter with Ms Lorklang took place during a vice squad operation targeting suspected illegal brothels, that during that afternoon and evening he met a number of female managers and female workers in brothels and that his assumption was that the premises at 678A Sydney Road were "obviously" being used as a "busy illegal brothel", a matter to which I will turn in a moment.
20. First, there is one other matter to which reference must be made on the question of whether Ms Lorklang was working in Australia, that is her joint bank account with Mr Rafferty.
21. Mr Rafferty produced copies of his bank statements in respect of a National Flexi Direct account No 48-404-1353 with the National Bank in the joint names of himself and Ms Lorklang. The evidence was directed toward the genuineness of their relationship, but it became a focus of attention because of a number of cash deposits some made by Mr Rafferty and some made by Ms Lorklang at Mr Rafferty's direction. These deposits totalled about $22,500 from 3 February 2000 until Ms Lorklang left Australia on 22 February 2002, after which they stopped.
22. Counsel for the respondent asks me to draw an inference from the pattern of these deposits and their cessation, that Ms Lorklang was working and that the deposits represented her earnings. I find myself unable to do so however, as those records were not intended to be and do not represent a complete picture of Mr Rafferty's banking and on the whole of the evidence the deposits are by no means beyond the amount available to him from his own earnings and savings, particularly given his employment record and lack of significant debt.
23. Now, acceptance of Ms Kingkaewklang's and Ms Lorklang's evidence that Ms Lorklang's visit to the premises on 1 July 1999 was as a friend and not as an employee and the absence of any inference arising from Ms Lorklang's and Mr Rafferty's joint bank account, disposes of the question of whether Ms Lorklang was employed by Ms Kingkaewklang in any capacity, that is as a sex worker or as an employee in a natural health centre. It is still however, at least to some extent, relevant to the question of Ms Lorklang's "enduring moral qualities", to determine whether the premises at 678A Sydney Road were used as a "busy illegal brothel" or indeed a brothel of any description.
24. Ms Kingkaewklang gave evidence that her premises were not a brothel but a natural health centre and that she had never been formally interviewed by police, had never been accused of running an illegal brothel and had never been charged or convicted of running an illegal brothel. She said that the premises exist today exactly as they did in July 1999 and are still operating. She produced unchallenged documentary evidence comprising:
(a) advertising material for "Thai Plus" Natural Health Centre proclaiming services from traditional Thai massage to diet/nutritional analysis.
(b) a Certificate of Registration of Business Name in the name of Thai Plus dated 21 January 1998.
(c) a planning permit from the Moreland City Council dated 31 December 1998 authorising the use of 678A Sydney Road, Brunswick for the purpose of a natural health centre.
(d) a certificate in relaxation massage from the Melbourne College of Professional Therapists dated 17 January 1997.
(e) a certificate in introduction to massage from the Northern Melbourne Institute of TAFE dated 26 June 1997.
(f) a certificate in massage therapy from the Melbourne College of Professional therapists.
(g) a certificate of membership of the Massage Association of Australia Inc dated 29 July 1997; and
(h) an undated accreditation certificate in relaxation Massage from the Massage Association of Australia Inc.
25. In addition Ms Kingkaewklang produced copies of income tax returns for her business (with the amounts deleted) for the financial years 1998 - 2001.
26. Ms Kingkaewklang's evidence was unshaken in cross-examination and the evidence she gave and the documents she produced would satisfy me that she was not operating a brothel in the absence of cogent evidence to the contrary.
27. The only evidence which might meet that description is the opinion of Detective Boyer, first expressed in his police diary entry for 1 July 1999 and then repeated 4 years later in his written statement of 9 May 2003.
28. I reject Detective Boyer's conclusion for the following reasons:
(a) on 1 July 1999 he was part of a Vice Squad operation doing random checks on suspected illegal brothels and his assumption may well have been, not unreasonably, coloured by his expectations.
(b) his visit lasted, on the better view of the primary documents, only 4 minutes, one of which was taken up speaking to a client leaving the premises before Detective Boyer entered the reception area.
(c) he did not ask for and did not sight the Moreland City Council Planning Permit, (the lack of which, I infer from his evidence, was in his mind a hallmark of an illegal brothel).
(d) Ms Kingkaewklang did not have a booking register which he was accustomed to ask for on such checks and which I infer he expected to find, usually existed and was usually handed over by the manager of the illegal brothel.
(e) he did not, because had no authority to, go into any room in the premises other than the reception area.
(f) he assumed that the fact that two men arrived while he was there and then left straight away because they realised he was a police officer demonstrated a consciousness of guilt at visiting an illegal brothel, when that assumption was not warranted given that he was wearing plain clothes and given that his police identification, which was on a lanyard around his neck, would not have been, to my observation easily discernible at a distance of several feet, and given that other explanations for that event can easily be suggested.
(g) he did not put to Ms Kingkaewklang that she was operating a brothel.
(h) he himself has never interviewed or charged anyone in connection with the operation of the premises at 678A Sydney Road and to the best of his knowledge no one else has either.
29. I am fortified in my rejection of Detective Boyer's conclusions and generally in this case by the observations and conclusions of immigration official, Greg Hatzistavrou, who visited the premises on the occasion referred to earlier in these reasons, namely 24 July 2000.
30. In a written statement, albeit one made apparently from recollection some 2 years and 8 months after his visit, Mr Hatzistavrou stated that it was difficult to establish whether the business at the premises offered any illegal services and stated that there was not enough evidence to suggest that Ms Lorklang was at the premises for any other reason than to visit a friend.
31. I set out Mr Hatzistavrou's statement in full:
"Statement concerning Mrs Vassana (sic) Lorklang dob 5/2/1963.
On the 24th of July Melbourne Compliance officers visited 678A Sydney Road, Brunswick, an address purported to be an illegal brothel/massage parlour. The business was and I believe is still advertised as a Thai Medicinal centre offering massages.
From what I recall the visit was initiated as a result of anonymous information that was forwarded to the department alleging the premises was being used as an illegal brothel and that unlawful non-citizen's were being employed.
Though the establishment was set up in a manner that was similar in make up to other confirmed illegal brothels ie, massage tables in each room. It was difficult to establish whether in fact this establishment was offering illegal services.
At the time of our visit, 3 females were questioned one of which was Mrs Vassana Lorklang. There were no customers there nor did any arrive during the short time we were on the premises.
Mrs Lorklang was identified as an unlawful non-citizen with entitlements to a bridging visa due to an outstanding s351 request to the Minister.
In order to verify her identity Mrs Lorklang offered to take officers to her home at flat 5/45 De Carle St, Brunswick.
Apart from sighting id for Mrs Lorklang, it also provided officers with an opportunity to confirm cohabitation with her husband as per her claims in her s351 request.
Her husband was not home at the time of our visit, however there were enough indications eg, photos of the couple, male clothing in the main bedroom and male toiletries in the bathroom suggesting cohabitation.
Given the fact there was not enough evidence to suggest Ms Lorklang was at the brothel/massage parlour for any other reason than to visit a friend and the evidence of cohabitation, she was granted a bridging visa E in association to her s351 request." (emphasis added)
32. The visa applicant carries an onus of proof in this case as s501 of the Act requires that she satisfy the Minister and thus the Tribunal, that she passes the "character test". Good character however is a reference to a person's "enduring moral qualities" and not to subjective opinions about the goodstanding or repute of a person in their community (see Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 663 FCA 7 at p.12).
33. Thus, there being no other character concerns raised in this case as relevant, apart from the three set out at paragraph 3 of these reasons, the Tribunal is satisfied, having rejected those allegations as unfounded, that Ms Lorklang passes the "character test".
34. It follows from all that I have said that the decision of the Tribunal is that the decision under review is set aside and that the matter is remitted to the respondent with a direction that Ms Lorklang's visa application not be refused on character grounds.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 9 and 10 December 2003
Date of Decision 15 December 2003
Counsel for the Applicant Martin Grinberg
Solicitor for the Applicant Pietrzak Solicitors
Counsel for the Respondent Derek Wood
Solicitor for the Respondent Australian Government Solicitor
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/1269.html