Piechowicz and Minister for Immigration and Multicultural and Ind igenous Affairs [2003] AATA 438 (15 May 2003)

Last Updated: 19 May 2003

DECISION AND REASONS FOR DECISION [2003] AATA 438

ADMINISTRATIVE APPEALS TRIBUNAL )

) N2002/219

GENERAL ADMINISTRATIVE DIVISION	)
	Re	STANISLAW PIECHOWICZ

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr J. Block, Deputy President

Date 15 May 2003

Place Sydney

Decision

The decision under review is affirmed.

(Sgd) Mr J. Block ...............................................

Deputy President

CATCHWORDS

IMMIGRATION - provisional spouse visa - character test - false and misleading statements and conduct - not of good character - whether discretion should be exercised in Applicant's favour - primary considerations - protection of Australian community - seriousness and nature of conduct - risk of recidivism - general deterrence - expectations of Australian community - other considerations.

Migration Act 1958 - sections 234, 235, 501

Ministerial Direction No. 21 - Visa Refusal and Cancellation under Section 501 of the Migration Act 1958

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

REASONS FOR DECISION

15 May 2003

Mr J. Block, Deputy President

Part A - Introduction and General

1. The decision under review is the refusal dated 10 January 2002 by a delegate of the Respondent of an application for a spouse visa by Zizi Kharshiladze (the "Visa Applicant"), in respect of that application the Applicant, who is her husband, was the sponsor.

2. Ms S. Dzelebdzic appeared for the Applicant and Mr E. Palmisano of Blake Dawson Waldron, solicitors, appeared for the Respondent. The Tribunal had before it the T documents and also supplementary T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with a number of exhibits. The exhibits (which need not be described in detail) fall into three categories: apart from witness statements, there are references in respect of the Visa Applicant which either do not deal with or overlook the actions by her which gave rise to this hearing, and country information concerning both Poland and Georgia. Given that Ms Dzelebdzic conceded from the outset that the Visa Applicant did not pass the character test, the relevance of the references and also the evidence of Mr John Mlynarski who spoke of the Visa Applicant's kindness to the Applicant's late mother and one of his sisters (presumably intended as evidence of recent good conduct) was of little relevance. It is important to remember that where the character test is failed, the decision falls squarely under part 2 of Direction 21, to which I will refer more fully later in these reasons.

3. The supplementary T documents are not numbered sequentially after the T documents. Accordingly, references to the T documents when preceded by "T" refer to the T documents proper while references preceded by "S" are references to the supplementary T documents.

4. The hearing of this matter took place over three days, being 28 October 2002 ("first day"), 29 October 2002 ("second day") and 6 January 2003 ("third day"). It was not possible to take closing submissions on the third day because the time was not sufficient and in any event neither of the representatives of the parties had obtained the transcripts for the previous two days. Closing submissions were furnished in writing after the third day. In respect of each hearing day, the transcript commences at page 1. Accordingly, references preceded by "1TS" refer to the transcript for the first day while references preceded by "2TS" or "3TS" should be construed correspondingly.

5. Only three witness gave evidence before the Tribunal. They were the Applicant who gave his evidence with the aid of an interpreter in the Polish language, Mr Mlybarski who gave evidence in person, and the Visa Applicant who gave evidence by telephone link to Poland, on the second day with the assistance of an interpreter in the Russian language and on the third day with the assistance of an interpreter in the Georgian language.

6. The Visa Applicant had in her spouse visa application (in which she described herself as an economist/lawyer) and in answer to questions 34 and 36 (Tp60) specified that her main languages were Georgian/Russian and that Russian was a language which she could read, understand speak and write fluently. She appeared on the second day to be managing satisfactorily with the aid of a Russian interpreter (and she did not object to assistance from a Russian interpreter) although at 2TSp70 the interpreter said that "her Russian is not very good". On the third day, an interpreter in the Georgian language was present. The Tribunal determined that the safest course would be to take the Visa Applicant's evidence again from the beginning.

7. This is a matter in which, as I have indicated, the Applicant accepted that the Visa Applicant did not pass the character test. As will be noted, there were over a lengthy period a considerable number of acts which, on the balance of probabilities, constituted breaches of section 234 of the Migration Act 1958 (the "Act"). There were in addition breaches of section 235 of the Act in that the Visa Applicant at times worked illegally in Australia. That concession was in my view correctly made. It is however necessary to deal with them because seriousness is relevant in the exercise of the discretion set out in part 2 of Direction 21. It is for this reason that it is desirable and indeed necessary for me to deal with the evidence before me in some detail.

8. The Respondent has, in his Statement of Facts and Contentions dated 21 June 2002, furnished what amounts to a useful chronology of relevant events. I set out its content under the heading of "Facts" only. Clauses 2 to 28 read as follows:

"FACTS

2. On 2 April 1955, the applicant was born in Poland (Tp81).

3. On 17 March 1961, the visa applicant was born in Georgia (Tp88).

4. In June 1998, the visa applicant applied for a visitor visa at the Australian Embassy, Moscow. In this application the visa applicant indicated that she was married with a daughter and provided documents to support this claim (Tp28-34).

5. On 23 June 1998, the visa applicant was granted a visitor visa authorising a stay in Australia for a period of three months (Tp87).

6. On 8 July 1998, the visa applicant entered Australia on the visitor visa granted on 23 June 1998 (Tp115).

7. On arriving in Australia, the visa applicant joined her de facto partner Mr Giorgi Giorgibiani (Tp35).

8. On 12 August 1998, the visa applicant and Mr Giorgibiani applied for protection visas. Only Mr Giorgibiani made specific claims under the Refugees Convention (Sp1-26).

9. On 28 September 1998, the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister")refused to grant the protection visa (Sp27-32).

10. On 12 August 1998, Mr Giorgibiani lodged an application for review of the delegate's decision with the Refugee Review Tribunal ("the RRT") (Sp34).

11. On 13 June 2000, the visa applicant gave evidence at the hearing before the RRT in relation to Mr Giorgibiani's claims (Sp50).

12. On 28 November 2000, the RRT affirmed the decision of the delegate to refuse the grant of a protection visa. The visa applicant was directed to make arrangements to depart Australia (Sp33-57).

13. In April 2000, the visa applicant met the review applicant (Tp83, Tp89).

14. In July 2000, the visa applicant and the applicant began living together at the review applicant's house in Sydney (Tp83, Tp86).

15. On 20 December 2000, the visa applicant married the review applicant (Tp84).

16. On 21 December 2000, the visa applicant wrote to the Minister seeking his intervention under s417 of the Migration Act 1958 ("the Act") (Tp35).

17. On 28 December 2000, the visa applicant was granted a Bridging E visa valid to 25 January 2001 (Tp41-43).

18. On 25 January 2001, the visa applicant was granted a further Bridging E visa valid to 23 February 2001 (Tp44-45).

19. On 23 February 2001, the visa applicant was granted a further Bridging E visa valid to 23 March 2001 (Tp46-48).

20. On 23 March 2001, the visa applicant was granted a further Bridging E visa valid to 12 April 2001 (Tp49-50).

21. On 9 April 2001, the Minister sent a letter to the visa applicant advising that her request for consideration under s417 was denied. In the letter the visa applicant was asked to contact the Department of Immigration and Multicultural Affairs ("the Department") to discuss her status in Australia (Tp51).

22. On 12 April 2001, the visa applicant was granted a further Bridging E visa valid to 9 May 2001 (Tp52-54).

23. On 9 May 2001, the visa applicant departed Australia (Tp115)

24. On 23 May 2001, the visa applicant lodged an application for a spouse visa based on her marriage to the applicant at the Australian Embassy in Warsaw (Tp55).

25. On 5 December 2001, a notice of intention to refuse a visa under subsection 501(1) was sent to the visa applicant (Tp126).

26. On 10 July 2001, the visa applicant and the review applicant were interviewed in relation to the visa applicant's application for a spouse visa (Tp149-151).

27. On 19 November 2001, the visa applicant was again interviewed in relation to her application for a spouse visa. At this interview she admitted that she had provided false information and documentation in relation to her 1998 visitor visa application (Tp147-148).

28. On 10 January 2002, the delegate of the Minister refused the application for a spouse visa (Tp6)."

9. As a matter of balance, the facts as contained in the Applicant's Statement of Facts and Contentions dated 3 June 2002 are incorporated as follows:

"THE FACTS

The facts as stated on the Decision Record in the Section 37 documents T2, folios 6-9, point 2, parts B and C are generally admitted.

* Visa Applicant, Mrs. Kharshiladze, lodged an application for a Visitor visa at the Australian Embassy in Moscow in June 1998. She produced a false document stating that she was married at the time and that she had a daughter. (T5, folio 34)

* Mrs. Kharshiladze arrived in Australia on 8th July (T15, folio 87), following her de-facto, Mr. Giorgobiani. They lodged an application for On Shore Protection, Mrs. Kharshiladze being a secondary applicant. This application was refused by the Department of Immigration on 28th September 1999 and the decision affirmed by the Refugee Review Tribunal on 10^th November 2000. (T24, folio 143)

* Mrs. Kharshiladze met Mr. Piechowicz in April 2000, moved to his place in July 2000 and they married in December 2000. (T24 - folio 143)

* Mrs. Kharshiladze left Australia on 9^th May 2001 and her application for a spouse visa was lodged with the Australian Embassy in Warsaw on 23^rd May 2001. (T24)

* The first interview with Mrs. Kharshiladze was held on 10^th July 2001. The nominator was also present. The relationship was assessed as a genuine and continuing one. (T24 - folios149 to 151)

* The second interview with Mrs. Kharshiladze was held on 19^th November 2001, where it was established that the visa applicant presented the Department with a false document when applying for a visitor visa in 1998. She also failed to advise the Department that her relationship with her de-facto ended and failed to state her first marriage on her application for a Spouse visa. (T24 - folio 148)

* A Notice of intention to refuse visa under subsection 501(1) was issued on 5^th December 2001. (T22)

* Reply to Notice was faxed on 21 December 2001 to the Embassy. (T23 - folios 128 to139)

* The decision to refuse the Applicant was made on 10^th January 2002. (T2)"

10. The Respondent in his closing submissions and under the heading "Seriousness of the conduct" contended that the Visa Applicant admitted to conduct as follows:

"Seriousness of the conduct

6. Paragraph 2.6(c) of Direction 21 states that presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia is considered by the government to be very serious. The Visa Applicant has admitted to the following conduct:

(a) providing false and misleading information at question 8 of her visitor visa application by stating she was married [T28] when at that time she was widowed;

(b) providing false and misleading information at question 16 of her visitor visa application by stating that her reason to visit Australia was to attend the "soccer tournament Kanga cup" [T28] when in fact her actual intention was to find employment in Australia;

(c) providing false and misleading information at question 22 of her visitor visa application by stating that she was the head of the teaching department of Avaza, a private soccer school [T29], when she was actually working at the Tblesi Institute of Social Economics;

(d) declaring on her visitor visa information that "the information on this form is complete and correct" [T30];

(e) providing a certificate attached to her visitor visa application from Gela Chanturia, Director of Private Soccer School Avaza Ltd confirming that the Visa Applicant is the head of the teaching department [T33] which the Respondent submits is a bogus document that contains false and misleading statements;

(f) providing a document attached to her visitor visa application stating that the Visa Applicant is married to Kurashvily Kaha Georgievich and has a daughter named Kurashvili Tamula Kahaberovna [T34] which the Respondent submits is a bogus document that contains false and misleading statements;

(g) coming to Australia on a visitor visa with the express intention of working in Australia, even though she was fully aware that it was a condition of her visa that she was not allowed to work and despite signing a declaration on her visitor visa application stating "my intention to visitor (sic) Australia is genuine and I will abide by the conditions of the visa" [T30];

(h) lodging a protection visa application on 12 August 1998 as a member of the same family unit as Mr Giorgi Giorgibiani [S14], when Mr Giorgibiani's claims were false;

(i) failing to inform the Department when her relationship with Mr Giorgibiani ended and failing to inform the Department when she changed her address in Australia, even though she signed a declaration in her protection visa application stating that:

"I undertake to inform the Department of Immigration & Multicultural Affairs of any changes to my personal circumstances (eg marital status, changes to the family composition) while my application is being considered". [S26]

(j) providing false and misleading information at question 22 of her protection visa [T59] by failing to provide details of her first marriage;

(k) providing false and misleading information at question 73 of her spouse visa application [T66] by stating that she had been given written permission by the Department to work in Australia from 12 August 1998 to 25 December 2000.

7. The Respondent submits that these factors fall squarely into those serious crimes against the Migration Act as set out in paragraph 2.6(c) of Direction 21. In support of this submission, the Respondent cites Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148) as demonstrating that the Tribunal has in the past treated immigration malpractice as very serious conduct."

11. Again as a matter of balance and in the same context the Applicant's closing submissions are insofar as they deal with the same topic (clauses 6 and 7) repeated as follows:

"Seriousness and nature of the conduct

6. Visa applicant admitted that she provided false documents in relation to her visitor visa application as well as some false or misleading statements. She also admitted that she failed to advise the Department about change of addresses and when her relationship with Mr. Giorgobiani ended.

7. In relation to permission to work, Visa Applicant was granted a Bridging Visa A with permission to work on 12/08/98. She made a valid application for Protection visa, Class AZ having spent less than 45 days in Australia within the 12 months immediately before the date of that application. [051.611A (1) (b)].] Visa Applicant lost permission to work when she applied for Bridging Visa E, 28/11/00. (T09)"

Part B - The evidence of John Mlynarski

12. Mr Mlynarski gave evidence in point of time after the evidence of the Applicant; however it is convenient to take his evidence first. He is a resident and citizen of Australia who described himself as a "teacher by trade." His evidence before me, although it took some considerable time (and he clearly enjoyed giving evidence) can be discounted to a large extent as irrelevant or hearsay or both. He is a cousin of the Applicant who has visited Poland and in particular the Applicant's family on a number of occasions and most recently after the Visa Applicant became resident there. The Applicant has two sisters and two brothers who, with their families, are resident in Krakow; his mother whose death is comparatively recent also lived in Krakow.

13. Mr Mlynarski spoke warmly of the Visa Applicant and mentioned the help she has given to the Applicant's mother (before her death) and to one of the Applicant's sisters. As I have noted, I take this to be evidence of recent good conduct (which of course it is) and which might be relevant if I were obliged to decide whether or not the Visa Applicant passed the character test.

14. When asked what he knew about the conduct of the Visa Applicant, which gave rise to this hearing, his evidence was obtuse. He said that he thought that she had completed some forms incorrectly. When asked what he had in mind he gave an example by specifying something which one of his pupils (primary school pupils) might do and in other words something altogether trivial. He stated in 2TS p37:

"When children fill in something on the - on a test, they may fill in a section that says `Religion', and they might put down `RC'. `RC' is the old form of `Roman Catholic'. We don't use that term any more. The term is `Catholic'."

When provided with more details of the Visa Applicant's conduct, he said that he was surprised. However his evidence was that he was close to the Applicant and the Applicant's family, and given that he is a man of some education, it is unlikely that he was not aware of the nature and extent of her conduct. It is likely that it was the cause of discussion between him and the Applicant prior to the hearing.

Part C - The evidence of the Applicant

15. The Applicant is a large and well-built man who was born in Poland in April 1955. He was first married in 1976 while still in the Polish army. His first wife was pregnant when he married her and he did so, so he said, in order to give the child a name. His evidence was that he did not ever live with his first wife; nor did he have any contact with the child although he paid maintenance for the child until the age of 18. He said that he thought it best not to have contact with the child; he appeared to have doubts as to the child's paternity.

16. The Applicant is a trained motor mechanic. However, in 1980, he was working in Iraq as a contactor/truck driver and where he met Zofiia Zlobinska ("Zofia") who had a daughter then aged 4, Isabella.

17. The Applicant and Zofia commenced living together on their return to Poland. That relationship continued for a good many years thereafter. In 1992 the Applicant became resident in Australia. Zofia and Isabella joined him in 1995, and it was at that time that the Applicant and Zofia were married. There was some rather confused evidence arising from a question as to why they had not married earlier. His evidence at first suggested that he was not free to marry; however it transpired that it was Zofia who was not free to marry at that time because she had not been divorced from her previous husband.

18. After about 4 or 5 months together in Australia, difficulties connected with Isabella arose. Isabella, by now 19, wanted to live away from her mother and stepfather and the Applicant objected. He felt that Isabella was new to Australia and in essence that her place was at home. That this attitude was strongly felt is indicated by the fact that the Applicant told his wife that if Isabella went then so should she. (As to how the Applicant could have prevented Isabella from doing what she chose given that she was not a minor in the eyes of the law and in any event not his daughter was never made clear), I had the very clear impression that the Applicant is a man of strong convictions. The Applicant and Zofia were divorced on 4 March 1997. Zofia subsequently died; the fact that she did so gave rise to complications in relation to a house in Krakow of which the Applicant and Zofia were joint owners; following the death of her mother, Isabella is entitled apparently to her share of the house in Krakow. I shall return to this aspect later in these reasons.

19. Although the Applicant is a qualified motor mechanic, he became a butcher in Australia. He worked first for Presto and later for Primo. Isabella also worked at Presto before leaving to take a job in an office. The Applicant said that he liked working as a butcher in comparison with working as a motor mechanic because he "did not get as dirty" (1TSp15).

20. The Applicant met the Visa Applicant while she too was working at Primo in the factory in April 2000. Having made enquiries of her through friends, they started going out together. They commenced living together in July 2000 and were married in December 2000. There is no question as to the genuineness of the marriage.

21. The Applicant knew before he married the Visa Applicant that she would have to leave Australia. They went to see the immigration authorities together before their marriage (1TSp18).

22. The Visa Applicant left Australia in May 2001 and went to live in Krakow because, as the Applicant put it, Georgia was too dangerous; it was, so he said, in a state of war. The Applicant visited her in Krakow in July 2001, and accompanied her to her first interview at the Australian embassy in Warsaw in that month.

23. The Applicant said in particular that the Visa Applicant went to live in Krakow because all of his family were living there and so would be able to provide her with support. The Applicant's evidence was that at the first interview in July 2001, he was told that there should not be any further problems and that he and the Visa Applicant started to "try for a child" (1TSp24). Whether he obtained any real assurances from the embassy is doubtful having regard to what had occurred in Australia as regards the protection visa application, and there is nothing in the interview record which would indicate that this was so. The embassy may not have known at that stage about the false documentation (to be referred to more fully later in these reasons), but the embassy knew about the fact that the Visa Applicant had been a party to the protection visa application made by her then de facto partner Mr Giorgi Giorgobiani ("Giorgi"). The interview record appears in the T documents at Tp149 to Tp151.

24. The second interview took place in Warsaw in November 2001. By that time the embassy had discovered that the Visa Applicant's original visitor's visa application contained false information and was based on false documentation. In the result, the spouse visa application was refused in January 2002 and by which time the Visa Applicant was pregnant. A son, Tadeusz, was born in March 2002. The second interview record appears at Tp147 and Tp148.

25. The Applicant's evidence was in effect that although he knew before he married her that the Visa Applicant would have to leave Australia, he did not know the surrounding circumstances. Assuming that this is true, it is likely in my view that he would have known the circumstances thereafter. The Applicant is not the sort of man who would allow himself to remain in complete ignorance. That she became pregnant at that time and when her position as regards Australia was uncertain may be significant. His evidence at 1TSp28 was that the Visa Applicant did not appreciate the repercussions of her actions and that she was repentant.

26. The Applicant spoke at some length of the situation in Poland. According to him, the economic situation was bad and getting worse and the unemployment rate was rising. His evidence as to the situation of all of his siblings was uniformly gloomy. Small businesses in which two of them had been involved had had to close. One brother travels to Austria to obtain work with his wife's relations. His evidence at 1TSp36 was that the change in Poland from communism to a market economy had led to great upheaval. Firms in other countries in Europe, notably Germany and Denmark were buying businesses in Poland and modernising them but the modernisation process was, because of mechanisation, causing more and not less unemployment. According to his evidence, standards in schools and hospitals were poor for lack of money, and the cost of services and basic goods was, in comparative terms, high. It is difficult to know what to make of all of this evidence, especially having regard to his evidence that the situation in Georgia was dire; he referred in this context to war, martial law and occupation by forces which might have been forces sent by the United Nations. (It was plain that he knew very little in reality of the situation in Georgia). The Applicant was plainly exaggerating the position in the belief that the worse the situation in Eastern Europe, the more likely it would be that the visa would be granted. Some of his evidence as to Poland, but not as to Georgia was in all probability true, at least to some extent.. The change to a market economy where employment could not be guaranteed would undoubtedly be adverse for the unskilled and the unqualified. It may be that his siblings fall into this category. It does not apply to someone who has two trades, both marketable. A trained motor mechanic is unlikely to be unemployed. He said that his age was against him. The fact is that he is 47 and hardly someone who is too old for reasonable employment.

27. The Applicant's evidence as to the house in Krakow was that he and Zofia bought it in 1988 for US$5000.00. It has been used over the years since he came to Australia as a holiday home by family members. It is currently worth about US$100,000.00. Because Zofia is dead, probate is required. Probate will cost 10% of the value or AUD$20,000.00 (T1pp49-51). This amount will be required, according to the lawyer whom he has already consulted, and to whom he has already paid a sum for advice. The Visa Applicant currently lives in the house with Tadeusz; no amounts are paid to Isabella who after all owns or is entitled to own one half. He became indignant about the very idea of her being entitled to anything because he has paid for everything over all of the years. The house is situated in the suburbs and has a garden; the area of land (after much discussion) is about half an acre. His attitude seemed to be that Isabella is entitled to nothing. In the meanwhile, the house remains registered in his and Zofia's name and is occupied by the Visa Applicant and Tadeusz. The house has one bedroom, one living room and one bathroom, apart from a kitchen. It has central heating which does not currently work. To sell it would be difficult because it is affected in some way by some form of government order. The text of the legal advice was not before me. Nor was there any legal evidence as to just why everything to do with the house is was so complex so that nothing can be done. Given the propensity of the Applicant to exaggerate difficulties, it is difficult to accept everything he said about the house at face value. The current position appears, so far as I can tell, is that the house is adequate but not princely, and that the Visa Applicant and Tadeusz live in it without any obligation to pay Isabella anything in the nature of rent.

28. The Applicant's evidence as to the Visa Applicant's situation in Poland was also confusing. She is living in Poland as a temporary resident whose visa must be renewed every 3 months. (There were later references to 6 months). Tadeusz has dual citizenship just as he, the Applicant does. Again in the absence of legal or other suitable evidence, it does not seem likely that the Visa Applicant and Tadeusz would not be allowed to continue living in Poland.

29. As to whether the Applicant could live with the Visa Applicant and Tadeusz in the house in Krakow resulted in even more confusing evidence which I did not fully comprehend. According to the Applicant, a resident in Poland is registered at a given address and if I understood him correctly, it is difficult to change.. And he is registered, so he said, at the small home of his late mother. In effect the Applicant sought to have me believe that it would be difficult for him to obtain the right to live in the home in Krakow of which he is a joint owner.

30. When asked whether if this application went against him, he would be reunited with the Visa Applicant in Poland, the Applicant was firm about the fact that he would not. His home is in Australia and he would not consider leaving Australia. The fact that his close family is there, as are his siblings and their families, was not so far as he was concerned, sufficient to alter this view. And it must be remembered that Tadeusz is, given his doubts as to the paternity of the child of his first marriage, his only child. He again referred to his age and the fact that he would find it hard for that reason to obtain employment.

31. I imagine that I was intended to believe that for the Applicant, a Polish citizen to live in a house in Krakow, of which he is a joint owner, is either difficult or impossible. In the absence of evidence to this effect, I do not believe that this can be so. Nor do I accept that the position with the house in Krakow is as difficult as he would have me believe. If he did obtain legal advice, that advice was not before me. The evidence of the Applicant as to the situation in both Poland and Georgia was plainly exaggerated and probably inaccurate. He was asked about the value of his home in Australia, and in which he has substantial equity. He said that he would not sell it because to do so would involve him duty and costs. It was pointed out to him that when a home is sold in Australia, it is the purchaser and not the seller who pays the duty. That said, I accept that conditions in Poland are not as favourable as they are in Australia. The change from a communist regime has not been a universal blessing for everyone; such an upheaval is never easy. I will revert (although in brief terms) to the exhibits on this subject later in these reasons.

Part D - The evidence of the Visa Applicant

32. As I have noted, the Visa Applicant gave evidence twice, although her evidence on the second day with a Russian interpreter was not completed.

33. At the commencement of the hearing, and after Ms Dzelebdzic advised me (as I have said) that the Applicant conceded failure of the character test, I asked her whether the Visa Applicant's evidence before the Refugee Review Tribunal ("RRT") was alleged to have been truthful even though the application failed. Ms Dzelebdzic said that the Visa Applicant had given evidence as to incidents in 1995 even though her relationship with Giorgi had commenced only in 1996.

34. The Visa Applicant was born in Georgia in March 1961. After finishing high school, she became a student in the faculty of law graduating with a law degree in 1981. (There were references in the evidence to an LLB but I take the Visa Applicant's qualification to have been equivalent.) She could not find work as a lawyer after she graduated. She obtained work at a paper manufacturing company and worked there for 4 years.

35. In 1986, the Visa Applicant obtained work as an economist in a bank. So far as I could make out, her work was in foreign exchange. She worked in the bank for the next 10 years. During that period, she studied part-time and obtained a qualification as an economist. Having been made redundant in 1996, the Visa Applicant obtained a position at an Institute of Sociology.

36. The Visa Applicant said that her family was in debt. Her later evidence led me to infer that by this she meant that her family did not have enough income to live on, rather than that they owed some large amount. She had to leave Georgia to go and earn money. She was not concerned as to her country of destination but as it happened, saw an advertisement by one Gogona, an employee of a travel agency in Gerogia, which indicated that an Australian visa could be procured at a cost of US$3000.00 or sometimes, US$3500.00 or as appears from the application under section 417 of the Act to the Respondent, US$2500.00. That amount was borrowed, according to her evidence on the second day, from friends and relations, but on the third day, she said that she borrowed the money she required from a neighbour. She made it plain that she went to Australia in order to earn money; her statements to the RRT that she had to leave Georgia to escape persecution were untrue.

37. Gogona made it clear that as a single woman without children (her husband having died in a motor accident a year after marriage) she would not get a visa. (The Visa Applicant's evidence as to how precisely she came into contact with Gogona varied). This set of circumstances resulted in the invention of a husband and a child together with false supporting documentation. False documentation was also required to enable her to come to Australia as a director of a football school and as a teacher at it. None if this was true and indeed all of the documentation (procured by Gogona but with the help of others) was false. One of the documents furnished in support of the visa application is a certificate by Gela Chanturia, (who described herself as the "Director of Private Soccer School "Avaza Ltd") (Tp33) as to her, the Visa Applicant, being the head teacher at the school, in receipt of a salary of 350 lari a month from it and on "vocation (sic) from 01.07.98 to 30.07.98 and afterwards will return to her job".. It was necessary of course to prepare and sign a false visa application.

38. The Visa Applicant did not contend that she came to Australia for any reason other than to make money. Her evidence that she intended to return to Georgia after she had done so cannot, in the light of events, be accepted.

39. At that time (1998), the Visa Applicant was in a de facto relationship with Giorgi. Within a short time after their arrival in Australia, Giorgi applied for a protection visa; the Visa Applicant was not an applicant but she was a party to it in consequence of the de facto relationship. Within a short time after arrival in Australia and even before she could obtain a bridging visa entitling her to work, the Visa Applicant was at work at a grape farm picking grapes and of course in breach of section 235 of the Act.

40. The protection visa application having been refused, that refusal was appealed to the RRT where both Giorgi and the Visa Applicant gave evidence. The RRT decision sets out at Sp50 aspects of her evidence. The second and third paragraphs of Sp50 read as follows:

"The Tribunal asked the wife whether their house was ever searched by the police. She said that it had not, but the police had searched his parents' place.

The Tribunal then asked about injuries which her husband had suffered at the hands of police. She said that he was detained for about two weeks after a demonstration on 9 April 1997 (sic), and was severely beaten around the back and feet. She said he was arrested a second time and was kept for about two days in which time he was tortured by having a plastic bag put over his head while he was beaten on the feet with a `rubber stick.'"

41. The RRT, however, affirmed the refusal decision in November 2000. The RRT plainly did not believe Giorgi's claims to be a refugee. Its findings and reasons are set out in Sp53 to Sp57. I include only the content of Sp56 and part of Sp57 (and excluding the Conclusion), as follows:

"It follows from this, that the Tribunal does not accept the applicant's evidence in relation to the alleged demonstrations on those two dates. The Tribunal is therefore not satisfied that the applicant attended either demonstration, or that he was mistreated by police and came to their attention as a former member of White George on 9 April 1997.

The applicant says that he and several others were arrested at a meeting held on 9 April 1998. After the hearing, the Tribunal obtained an independent account of that gathering, quoted above in the independent evidence. That independent account said that the meeting was dispersed by police with truncheons, but made no reference to any arrests. The account was sent to the applicant, and his agent's response is set out above. The Tribunal is aware that its letter contained a typographical error which gave a different date to the correct date as set out in the independent account. However, the agent's key response, that an absence of reports of arrests did not mean they did not take place, was not affected by the error. The agent did not amend that response when presented with an opportunity to do so, he simply reiterated the applicant's claim to have attended the meeting in question.

The Tribunal is conscious of that the failure of the media to report something is not proof that it did not occur. However, the Tribunal would have expected that had there been a number of arrests this fact would have been reported. The Tribunal also notes that the applicant did not refer to the presence of Ms Archvadze on this occasion, though the independent account records her presence.

Had the Tribunal not found that the applicant's account of two other gatherings was not correct, it would not find the discrepancies between the applicant's account and a single media report significant enough to reject his account. However, given the Tribunal's conclusions about the alleged events of 25 October 1995 and 9 April 1997, and its doubts about the claimed events of 11 December 1994, these discrepancies are such that the Tribunal is not satisfied that the applicant was present at the gathering and arrested and detained on 9 April 1998.

It was the applicant's alleged arrest on 9 April 1998, which gave rise to the subsequent events which he said prompted him to leave Georgia. He said that he was interrogated and severely beaten when he refused to co-operate. He said that after his release later that month, he was recalled for further interrogation. that (sic), when he did not report, police searched for him at his father's home. He said that he was later arrested on 26 May, and tortured severely.

Because the Tribunal is not satisfied that the events of 9 April 1998 took place as claimed by the applicant, it follows that the Tribunal cannot be satisfied that the events which he said flowed from them took place as he claimed.

The Tribunal accepts that the applicant, may in the years 1995 to 1998, have attended some rallies (other than the events discussed in detail at the hearing) which have been dispersed by police. At some of those rallies, the applicant may have been hit by police batons. However, the applicant has not claimed to have been seriously injured at any such rallies. The Tribunal does not wish to condone instances of police brutality, but does not consider that the applicant's experience of indiscriminate police violence at political rallies is sufficiently serious as to constitute persecution.

Even if the applicant were to continue to attend political rallies in Georgia, since he did not face anything serious enough to amount to persecuting in the past from mere attendance at rallies, the Tribunal is not satisfied that he would face persecution (sic) the future for such a reason.

Given the above conclusions, the Tribunal is not satisfied that the applicant has been singled out for attention, whether because of his membership of White George, because of his distant relationship with Manana Archvadze, or for any other reason. The Tribunal is not satisfied that the applicant has been arrested and tortured, and is therefore not satisfied that he has a real chance of facing such treatment for a Convention reason were he to return to Georgia."

42. Following the RRT decision, an appeal to the Respondent under section 417 of the Act was made, but it too failed. In the meanwhile, the relationship between the Visa Applicant and Giorgi was also in difficulty. Giorgi told the Visa Applicant that he did not wish to continue a relationship with her. Her evidence as to when it came to an end was inconsistent, but this probably occurred not long (about 4 months) before she met the Applicant and at a time when she was at work at the same meat company.

43. All of the allegations of fact made against the Visa Applicant, as set out in the Respondent's closing submissions, have been made out. The Visa Applicant, in general terms, sought to place the blame on the shoulders of someone else; Gogona and the adviser in Sydney came in for their share of the blame. She said that she did not always have adequate interpretation of aspects of her visa applications; this was so in particular as regards declarations of truthfulness by her in them. The Applicant had said that she had become a party to the fraudulent arrangement in respect of the visa application without appreciating the consequences. Such a contention might be acceptable at least to an extent from an ill-educated layman, but not from a university-educated lawyer and economist. For a period of 2 years the Visa Applicant treated the Australian legal system as regards immigration as if it was there to be circumvented but not to be obeyed. Nor do I accept that she carried out these acts for her family.

44. The Visa Applicant's evidence as to conditions in Georgia was exaggerated although it differed from that of the Applicant. She described a condition akin to war or at least great unrest and turmoil somehow attributable to events in Chechnya.

45. The Visa Applicant said that she receives AUD$1000.00 per month from the Applicant by way of support. She said also that he helps her parents in Geogia; he had not said anything about this. She said that this allowance is sufficient provided that she is frugal, because of the cost of even staple items such as kerosene.

Part E - The situation in Poland

46. As I have noted, some of the exhibits relate to the situation in Poland. They are in many respects contradictory. Rates of unemployment are unacceptably high. On the other hand Poland's gross domestic product is increasing satisfactorily. Poland's application to become a member of the European Union is nearing fruition. As near as I can judge, things could be better, but at the same time they could be worse. Poland is better off than most other former Iron Curtain countries.

47. The home in which the Visa Applicant and Tadeusz live is apparently adequate without being very luxurious. Some repairs are needed. I had made it clear throughout the hearing that evidence as to Tadeusz' living conditions would be relevant. There was no evidence that he is in need of anything. That this is so is because of his father's financial support. However, the Applicant has demonstrated, having regard to his support of the child of his first marriage (and, as I have noted, he expressed doubts as to whether he was that child's father) that he is a man who complies with his support obligations.

Part E - Direction 21

48. Direction No. 21 - Visa Refusal and Cancellation under section 501 is referred to in this Part and elsewhere in this decision as Direction 21. References to numbered clauses in this part refer to numbered clauses in Direction 21.

49. Clause 2.3 provides that the primary considerations are:

"2.3 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."

50. Clause 2.3 must be read in conjunction with clause 2.5, which provides:

"2.5 The factors relevant to an 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); and

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

51. I do not rate the risk of recidivism as high. The Visa Applicant has indicated that what she desires is a visa to reside in Australia and that she is prepared to break the law in order to achieve her aim. Having achieved it, there would be no reason to re-offend. But her conduct is such that this risk cannot be discounted entirely.

52. Deterrence in a case such as this is of very serious concern. The Australian embassy was deceived by a fraud which was orchestrated and documented with no little effort. The evidence was that the Visa Applicant was one of a large group which entered Australia as soccer teachers and supporters. The Visa Applicant's conduct took place over a lengthy period and during which she flouted Australian law repeatedly.

Deputy President McMahon's statement in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155 -156 reads as follows:

"This section sets out the circumstances in which non-citizens may become illegal entrants. Many of the provisions of the section are reflected in the regulations, particularly in Sch 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first subsection to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld."

It is necessary in a case such as this to send a strong message that conduct of this nature will not be tolerated.

53. I would expect that the Australian community would expect me to refuse a visa in a case such as this. While there might be a degree of sympathy for the Visa Applicant, there would be a much larger body of opinion which would take the view that conduct such as this cannot be tolerated where it was by an educated person, who after all is expected to have a respect for the law which he or she is trained to serve and honour.

54. The conduct of the Visa Applicant was undoubtedly very serious; see clause 2.6(c). The maximum penalty for breaches of section 234 of the Act is 10 years imprisonment. I should note also that I do not think that the Visa Applicant's evidence was always truthful. She and the Applicant were ready and willing to exaggerate difficulties and problems if they thought it would be of advantage to them. Georgia may be going through difficult economic times and may not be deriving much benefit from oil exports as is currently the case with Russia, but it is not at war. Similarly, and as I have indicated, Poland is not even remotely as depressing and depressed a country as the Applicant would have me believe. Poland in general and Warsaw and Krakow in particular are both popular tourist destinations.

55. The best interests of Tadeusz would prima facie be served by his being with both his parents. I do not doubt that the Applicant will honour his maintenance obligations to his only child. I do not know why he was so set against being reunited with his wife and child in Poland. The truth may be that he was exaggerating the position because he thought it would be of advantage to his case. He left Poland only a little over 10 years ago. He speaks the language and for that matter some Russian as well. He is trained in two trades which are generally in demand. He has assets here and he has an interest in a home on half an acre in Poland. He is perhaps reluctant to leave Australia and its favourable climate. But his past experience indicates an ability to make his way wherever he is. He met his second wife in Iraq and married her in Australia. Throughout the hearing, I made it clear that the living conditions of Tadeusz would be relevant. The evidence does not indicate that he lacks anything at all. As an Australian citizen, he will be free to come and go as he pleases, although of course this will be so in practical terms when he is rather older. The Visa Applicant said that she has to live frugally. However, the income provided by the Applicant is considerably in excess of the average wage and even more so when one takes into account that she need not pay any rent.

56. Hardship with clause 2.17 is not nearly as serious for the Applicant as it is for many similarly placed applicants who are separated from their wives in comparable circumstances. All of his close family and his siblings and their families are in Poland. And it must be remembered that he married the Visa Applicant at a time when he knew, at the very least, that she would have to leave Australia.

57. This is not a case in which it would be proper to exercise the discretion in favour of the Visa Applicant and the decision under review is affirmed.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President.

Signed: (Sgd) Kwai-Ling Wong .......................................................................................

Associate

Date/s of Hearing 28 and 29 October 2002 and 6 January 2003

Date of Decision 15 May 2003

Representative for the

Applicant Atlantis Immigration Professionals

Solicitor for the Respondent Blake Dawson Waldron