Korshunov and Minister for Immigration and Multicultural and Indi genous Affairs [2003] AATA 80 (29 January 2003)

Last Updated: 29 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/298

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Sergiy Korshunov

Applicant

And

Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal

Mr RP Handley, Deputy President

Date 29 January 2003

Place Sydney

Decision

The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Svitlana Korshunova passes the character test pursuant to section 501(6) of the Migration Act 1958.

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

RP Handley

Deputy President

CATCHWORDS

IMMIGRATION - spouse visa - subclass 309 spouse (provisional) visa - character test - whether the Visa Applicant passes the character test - examination of the Visa Applicant's past and present conduct - examination of the Applicant's immigration conduct - held that the Visa Applicant passes the character test - decision of the Respondent set aside.

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

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

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

REASONS FOR DECISION

29 January 2003

Mr RP Handley, Deputy President

1. This is an application by Sergiy Korshunov ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 14 January 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Svitlana Korshunova ("the Visa Applicant").

2. At the hearing, the Applicant was self-represented and the Respondent was represented by Sharon Hanstein, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. At the hearing, oral evidence was given in person by the Applicant, and by telephone by the Visa Applicant.

3. The hearing of this matter was complicated by the fact that the departmental files in respect of the Applicant and Visa Applicant, which were held by the Immigration and Visa Section of the Australian Embassy in Moscow up until 14 January 2002, were lost in transit between Moscow and the Compliance Section of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") in Sydney. These files contained copies of applications, records of interviews, and photocopies of documents submitted to the Department by the Applicant and Visa Applicant. As at the date of the hearing, neither file had been located.

Background

4. The Applicant, Sergiy Korshunov, was born in the Ukraine in the then Union of Soviet Socialist Republics ("USSR") on 6 September 1947 and is aged 55. In 1980, he married the Visa Applicant, Svitlana Korshunova. This marriage was dissolved by divorce on 1 September 1994. The Applicant and the Visa Applicant had one child from this relationship, a son, Artjem, born on 1 November 1980, who is now aged 22.

5. On 20 September 1994, the Applicant married Marianna Pavlovna Troianovskaia (also known as Marianna Troy) at St Petersburg in Russia. Ms Troy was an Australian citizen. On 27 September 1994, the Applicant applied for a spouse visa to reside in Australia. In February 1995, the Applicant was granted permanent residence and entered Australia for the first time on 13 July 1995. He became an Australian citizen on 3 December 1998. On the 23 February 1999, the Applicant and Ms Troy were divorced. During the period of their marriage, the Applicant and Ms Troy lived separately except for the first three months after the Applicant's arrival in Australia.

6. The Visa Applicant was born in the Ukraine on 3 October 1953 and is aged 49. She is an Ukrainian citizen. She married the Applicant for the first time in 1980, was divorced from him on 1 September 1994, and remarried him on 24 March 1999 in Donetsk in the Ukraine. She is currently living in the Ukraine.

7. On 14 April 2000, the Visa Applicant lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Moscow. On 6 September 2000, the Visa Applicant was interviewed in Kiev by a Senior Migration Officer from the Embassy. On 11 May 2001, she was interviewed again, by a Principal Migration Officer in Moscow. On 14 January 2002, a delegate of the Respondent decided to refuse the grant of a subclass 309 visa to the Visa Applicant. On 28 February 2002, the Applicant lodged an application for a review of this decision with the Tribunal.

Relevant Law and Policy

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

Having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character;...

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

either

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

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

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

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

12. The issue for the Tribunal to determine, therefore, is whether the Visa Applicant is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) not to refuse the grant of a visa.

Oral Evidence

Sergiy Korshunov (the Applicant)

13. Mr Korshunov said he was born in the Ukraine in 1947 and lived in Donetsk where he was educated. He first married at the age of 21 and has a son from this marriage who is now aged 33. The marriage ended in divorce after 10 years. Mr Korshunov married again at the age of 34 in 1980. He and his wife, Svitlana, have a son who is aged 22. Mr Korshunov worked as a long distance truck driver, travelling around the Ukraine and the USSR. He was away from home most of the time and did not devote much of his time to his family. He often spent only three or four days at home before being away for one to two months, depending on where he was going.

14. Mr Korshunov met his third wife, Marianna, in Odesssa in 1984. They were "dating" until 1990 when she migrated to Australia with her then husband. When Mr Korshunov went to Odessa with a cargo, she would meet him there. They would find time to be together at least once a year for a week to 10 days. Her marriage was not very successful - she and her husband lived separately from to time - and, after arriving in Australia, they were divorced. When this occurred, about three years after she migrated to Australia, Mr Korshunov and Marianna, with whom he had had a good relationship when she left for Australia, talked on the phone and decided they should get together. They had previously been talking on the phone about once a month. Mr Korshunov was also not happy in his marriage at the time and spent very little time at home.

15. In late 1993 and again in early 1994, Mr Korshunov applied for a tourist visa to come to Australia. He wanted to see how Marianna lived in Australia and she suggested that he come to have a look at Australia generally. He was also thinking about the possibility of importing goods from Australia to the Ukraine. He does not know why the two visa applications were refused. He did not tell Svitlana about the two visa applications.

16. Svitlana worked in a maternity hospital and could only get leave for a holiday at certain times of the year. Mr Korshunov could not take leave at the same time. By 1994, their relationship had not been good for a while. In July 1994, he refused to go on holiday with her. He knew she suspected he was having an affair with another woman and, when he refused to go on holiday with her, she thought this was the reason. She did not know who it was. He had had phone calls from women at home in connection with his business. Svitlana thought he was a playboy and that other women were after him. When he refused to go on holiday with her, she filed for divorce, in early August 1994, without asking him. The divorce was granted. It is easy to obtain a divorce in the Ukraine. There is no waiting period and it can take as little as a few weeks if the parties agree. Mr Korshunov denied there was any discussion with Svitlana of his marrying an Australian citizen so that he could come to Australia.

17. Mr Korshunov said soon after he and Svitlana were divorced, in September 1994, Marianna came to Moscow to see him. He had not seen her since she migrated to Australia in 1990. They had only spoken on the phone. He drove to Moscow to meet her and they went to St Petersburg where they were married two weeks later.. Marianna is Jewish but it was not a Jewish wedding. They had a party afterwards at a restaurant. Soon after, he applied to migrate to Australia. After they were interviewed at the Australian Embassy in Moscow, he was asked to have a medical examination and, on about 17 October 1994, Marianna left to return to Australia while he went through the formalities in Moscow. They had been together about 40 days. Marianna left because she had to get back to her sons in Australia and because she knew the visa application process would take a long time. After he was granted a visa in February 1995, Mr Korshunov still had to obtain the internal permission necessary to migrate to Australia - from the KGB, the military etc. He needed to register as leaving the country permanently and only then could he get the Australian visa inserted in his passport.

18. Mr Korshunov said he and Svitlana and their son had lived in his flat in Donetsk. After the divorce, Mr Korshunov lived in his summer cottage but he visited his son at the flat occasionally. Sometimes, Svitlana was there; sometimes she was at work.

19. Marianna had two sons. He had not previously met the sons who were then aged 12 and 14 and lived with her in Australia. He had also had no contact with them prior to his arriving in Australia. He only knew Marianna without her sons. He did not have much experience with children because he was away a lot while his two sons were growing up. So he did not expect things to be so complicated when he got to Australia and moved in with Marianna and her sons. When the sons visited Marianna's ex-husband's family, they talked negatively about Mr Korshunov and the sons turned against him. They did not like him. The situation was complicated by the fact that Marianna was Jewish and had different customs, by her boys attending Jewish schools, and because shortly after Mr Korshunov arrived in Australia he broke a finger on his right hand and had to have a pin inserted with the result that he could not work. Essentially, Marianna's sons forced her to choose between them and Mr Korshunov. She chose her sons.

20. About three months after arriving in Australia, on 22 October 1995, Mr Korshunov returned to the Ukraine where he could resume his truck driving. He had owned his own truck which, since Mr Korshunov's leaving for Australia, his brother had been driving. Mr Korshunov also found life easier in the Ukraine without the language difficulties he experienced in Australia. He lived in his summer cottage while his ex-wife, Svitlana, and their son continued to live in his flat in Donetsk. Mr Korshunov visited the flat while he was in the Ukraine in order to see his son. He even suggested to his ex-wife that their son should come to live with him in Australia but she was worried about the formalities and refused to agree.

21. Mr Korshunov said his relationship with Marianna had ended when he returned to the Ukraine in October 1995. He denied that he married her for the purpose of gaining entry into Australia. While he was in the Ukraine, Marianna's ex-husband died. She moved house and all contact between her and Mr Korshunov ended. It was obvious that with opposition from her sons and their grandparents, the relationship would never work.

22. After four months in the Ukraine, Mr Korshunov came back to Australia arriving on 22 February 1996. He had saved some money from working in the Ukraine and could live a normal life. He liked being in Australia again. He rented a flat and started work as a mechanic at a wrecker's yard. He phoned his ex-wife in Donetsk a few times to enquire about how their son was getting on at school. He also wrote her a letter. He was alone so he hinted at the possibility of getting back together again. She was not receptive to this.

23. Mr Korshunov was also in the Ukraine from 8 June 1996 to 14 November 1996. He lived in his summer cottage. He still owned his truck in the Ukraine. [Mr Korshunov showed the Tribunal photographs of his truck and of his truck and his brother.] However, Mr Korshunov said that in 1997 when he went to the Ukraine, he sold the truck. Again, he lived in his summer cottage. He only ever saw Svitlana if he went to visit his son at the flat and she was present. Occasionally, he stayed at the flat in order to be with his son if Svitlana was working nights. He had his own room in the flat where he could stay if he wanted to. It was his flat so according to Ukrainian law, he was entitled to enter it at any time.

24. In early 1988, he and Svitlana agreed to meet in the United Arab Emirates (UAE) for a holiday. During this time, they discussed their relationship and whether they should get back together. Svitlana told him to sort out his life and feelings and make a decision about what he wanted to do. Mr Korshunov told her that his marriage had broken down after a few months in Australia. However, he was still married to Marianna so, on his return to Australia, he arranged a divorce which came through in January 1999. Having obtained the divorce, he phoned Svitlana to tell her and asked whether she would remarry him. She said he should visit her in the Ukraine and then they could decide what to do. Thus, on 12 March 1999, he flew to the Ukraine and stayed with Svitlana in the flat. About one week after he arrived, she agreed to remarry him. They went to the Registry Office to apply to get married and remarried one week later, on 24 March 1999. It was a small wedding. Svitlana's sister and Mr Korshunov's friend, Valery and his wife attended. [Mr Korshunov showed the Tribunal a photograph of them all on that day.] They had a small party afterwards at a café near the flat called "On Yosi" [Yosi's place].

25. Mr Korshunov said when his wife was interviewed in Kiev by officers from the Australian Embassy in Moscow, she was asked to take with her evidence such as letters to establish that the relationship with her husband was genuine. In his letter to her of 2 April 1997 (Letter C), he was responding to her questions about the formalities which would be involved if their son applied for a visa to join Mr Korshunov in Australia. Mr Korshunov vehemently denied that the marriage was the product of a conspiracy. If it had been and the letters were secret, his wife would never have shown the letters to the officers from the Embassy. Mr Korshunov said he phoned his wife after the interview, probably on the following day. She had left the letters with the officers from the Embassy so that they could make copies. He is not aware of his wife having telephoned to ask for the letters back after the interview.

26. Mr Korshunov told the Tribunal that he could not read English. At the Tribunal's request, the interpreter translated back into Russian extracts from the letters which had been translated into English by an officer from the Embassy. She had retained the file electronically in her computer and it was not, therefore, lost with the departmental paper files. Mr Korshunov said there are inaccuracies in the translations. Although he agrees with parts of the translations, the words are sometimes in the wrong order or translated from a different perspective. With regard to the extract from Letter A, Mr Korshunov denied that his marriage to Marianna was concocted for the purpose of getting him and Svitlana to Australia. Svitlana would not have shown the letters to the officers from the Embassy if this was true. He did not understand the reference in the extract from Letter A for the need to wait for a year. After the end of his relationship with Marianna, his initial plan was to invite his son to join him in Australia to study. When he raised this with Svitlana - which would have been in about 1997, she told him to find out about the formalities, so he sought legal advice. He remembers consulting a lawyer in Sydney. He saw her in the presence of a Russian interpreter. He asked the lawyer about bringing his son to Australia and, and if she wanted to come to visit, his son's mother. Mr Korshunov said if all this had been part of a plan to get Svitlana and their son in Australia, Svitlana would not have refused to let their son come.

27. Mr Korshunov said he did not ask this lawyer about getting divorced from Marianna. He only sought advice about this after the meeting with Svitlana in the UAE in January 1998. A Legal Aid lawyer helped him obtain the divorce which did not cost him anything. It was only after he remarried Svitlana that he sought advice about her migrating to Australia. He found an agent's name in the Russian newspaper "Horizon" and spoke to him on the phone. Mr Korshunov asked the agent how much it would cost for him to complete the application form for Svitlana's migration. Mr Korshunov was told the fee, less expenses, would be refunded to him if the application was unsuccessful. Mr Korshunov did not, ultimately, use this agent. He completed the application himself with the help of his friend Victor.

28. Mr Korshunov was asked about the extract from Letter B. He said he could not understand it. The reference to starting the process of the divorce after 15 January does not make any sense. He obtained his divorce [decree nisi] from Marianna on 22 January 1999. It is difficult to imagine the matter could have been resolved in so few days.

29. With regard to Letter C, dated 2 April 1997, Mr Korshunov said this reflected his exploring the possibilities for his son, not Svitlana, to migrate to Australia. He did not take any steps with a view to Svitlana's migration until after they remarried in March 1999. She did not want to come to Australia in 1997. The Letter C extract is his ideas and suggestions in relation to their son's migration, although Mr Korshunov acknowledged that he also explored the possibility of Svitlana obtaining a visitor visa to visit their son. He emphasised that this was not part of a plan to get them all to Australia.

30. With regard to the extract from Letter D, dated 4 November 1998, Mr Korshunov said Sashka is a friend. However, it was not Sashka but Mr Korshunov's friend Alexander who offered to make arrangements for them if Mr Korshunov decided to accept the job he had been offered in PNG in connection with the construction of a coffee factory. His friend said he could organise a business visa for Mr Korshunov's wife.

31. Mr Korshunov said, since remarrying, he has been to the Ukraine twice, most recently between August and November 2002. During this trip, his elder brother had an operation to remove a kidney and, in October 2002, his son graduated from University. Artjem is now doing postgraduate work. Mr Korshunov's absences from Australia from 24 August 1999 to 22 September 1999 and from 11 October 1999 to 19 November 1999 were his two trips to PNG.

32. Mr Korshunov said he is renting a flat in Hurstville and living alone. He is working as a painter for Seana Group Pty Ltd, a company based at Bondi Junction. He earns about $220 per day and works six days a week. If his wife is not granted a visa, he will stay in Australia. He does not know whether he would ever marry again. If his wife is not granted a visa, he hopes, at least, that his son will be permitted to visit him here.

33. Mr Korshunov said when his wife was interviewed on the second occasion, in Moscow on 11 May 2001, it was arranged that he would participate in the interview by telephone from Australia at a particular time. However, at that time, he was unable to get through. Eventually, one and a half hours late, he got through with the assistance of a friend whom he called in Moscow. But his wife had already been told at her interview that the officer had spoken to Mr Korshunov and that Mr Korshunov had admitted that the whole course of events was a conspiracy. This was even though Mr Korshunov had not, by that time, been able to get through and he had said no such thing.

Svitlana Korshunova (the Visa Applicant)

34. Ms Korshunova said she was born in the Donetsk region of the Ukraine. She finished medical college in Donetsk in 1976 and was sent to work in a maternity home in Donetsk where she met Mr Korshunov who was working at the home as an administrative driver. Because Ms Korshunova graduated from medical college with an award, she was able to undertake further medical studies at Donetsk University, which she commenced in 1976 while also working at the maternity home. In 1980, she and Mr Korshunov were married and their son Artjem was born later that year. She finished her medical studies in 1981, qualifying as a biologist specialising in the physiology of humans and animals. She now works as a Doctor and Immunologist in a laboratory of clinical diagnostics at a special research centre for the protection of maternity and children.

35. Ms Korshunova said during her first marriage to Mr Korshunov they had a normal life together for about the first 10 years. In about 1985/1986, Mr Korshunov changed jobs and started driving trucks: initially, shorter trips for a government owned company and then, from about 1991, longer trips when he purchased his own truck. He was travelling long distances and was often away for long periods, nearly every month. She and their son did not get much attention from him. In about 1992, Mr Korshunov started receiving telephone calls at home, both from clients and a woman with whom, Ms Korshunova believed, he was having a relationship. If Ms Korshunova answered the telephone on these occasions, there was silence from the caller. Ms Korshunova tried to discuss this with her husband. He said it was all in her imagination.

36. At the end of 1992, their son was seriously injured. He suffered a serious trauma of the spinal cord and Ms Korshunova changed her work to a night shift in order to provide him with additional care. She also asked her husband to change his work schedule because she was physically exhausted. He tried to help but made no great effort and, because of his work schedule, he did not do very much. Ms Korshunova said she also probably did not give sufficient attention to her husband.

37. On one occasion, in the summer of 1994, Ms Korshunova was trying to organise for the three of them to go to a holiday resort. The holiday was principally for their son's rehabilitation but she also badly needed a holiday. Mr Korshunov refused to go with them. He said he could not take leave at that time even though he knew this was always the time she took a holiday. She was very hurt and frustrated, she and Mr Korshunov had a big quarrel and she told him she would file for divorce. He was indignant and angry but he said "It's up to you, it's your right - if you want to do it, go for it", and he walked out. He did not oppose her application so, about a week later, she filed the application. She thought her doing so would teach him a lesson but he just went away on holiday.

38. At the time of the quarrel, Mr Korshunov was living mostly at his summer cottage. He stayed at the flat only rarely. The had barely lived together as husband and wife since late 1992/early 1993. After the divorce, they did not live together as husband and wife. Because it was his flat, in law he had a right to use it. So to some extent they were sharing the same premises. However, he would only usually be there about twice a month, and sometimes he would arrive, get changed, get some things and go without staying the night. Occasionally, she would ask him to stay overnight with their son if she was working a night shift.

39. Although their son was largely recovered from his spinal injury, he still needed a lot of care and attention. She did not, therefore, bother with her relationship with Mr Korshunov. She stopped nagging him because they were divorced. This situation continued until about May 1995 when Mr Korshunov asked her to sign a paper because he was leaving the country. She was surprised when he told her that when he went on holiday in early September 1994, he went to meet the woman he loved whom he subsequently married and with whom he was going to live in Australia..

40. He told Ms Korshunova that he would help her financially. She asked him not to tell their son because he was not yet emotionally stable following his recovery from the spinal injury. After consulting psychologists and their son's tutors, they agreed to tell Artjem that his father was going to work overseas. Ms Korshunova was not sure when Mr Korshunov left for Australia that summer. Since the spring, he had only stayed overnight in the flat a few times. Most of the time he was living in his summer cottage.

41. Ms Korshunova said she was not aware until the hearing that Mr Korshunov had applied for visitor visas for Australia in December 1993 and May 1994. She did not recall this being referred to in the Decision Record. An interpreter - a teacher of English at the University - read the decision to her. She listened carefully but perhaps she thought the reference to the visas was to the documents she had to sign in relation to her husband leaving for Australia. She could not recall.

42. After Mr Korshunov left for Australia, she remembers that he phoned on a couple of occasions and spoke with their son when she was not at home. She does not know when he returned to the Ukraine or where he was living. Later, in the autumn, he phoned to ask if he could visit the flat. He asked whether she had changed the locks because he had kept a key. So he came to visit, brought some presents for their son and some money, and asked about his truck which was still there from when he went away. These occasional visits continued until 1997. She saw him a few times when their son was present and he appeared to be interested in their lives. Ms Korshunova estimated that she saw Mr Korshunov about five times over his trips to the Ukraine in 1995, 1996 and 1997.

43. In 1997, there was a bad incident when their son was approached by two men at night who demanded money. Ms Korshunova said she was shocked and very upset. A couple of days later when Mr Korshunov phoned, she told him about the incident and that she was very upset and that their son needed the care and attention of his father. Mr Korshunov suggested that he could take Artjem with him to Australia. She told him one hundred percent "No." She did not want to loose her son. But, after that, Mr Korshunov wrote to her trying to persuade her to let Artjem go to Australia: she would not be loosing her son; she could visit him in Australia at any time provided she could obtain a visa. Artjem could undertake his university education in Australia. Although, in some respects, it seemed a good idea, Artjem was finishing school at the time and, ultimately, their correspondence ceased. She and Mr Korshunov were not on particularly good terms. They never discussed her migrating to Australia, only Artjem, although Mr Korshunov did consult somebody to see if she could visit Australia to see their son.

44. Artjem decided to go to university after leaving school. Mr Korshunov knew of this and visited them that summer and for the purpose of his business. He stayed until after Artjem had finished his entrance exams. Thereafter, he phoned from time to time asking how Artjem was getting on with his studies and about their financial situation. It was at the end of 1997 that Ms Korshunova realised Mr Korshunov was having problems with his personal life. He mentioned in one of his letters that he was making enquiries about how they could get back together as a family. He did not say, at that time, that he was separated from his wife. He just said he was not happy with his personal life. She responded that, first, they had to sit and talk about it face to face and he must admit his mistakes.

45. Mr Korshunov therefore invited Ms Korshunova and Artjem to the UAE for a holiday. They had a wonderful time. They both realised their mistakes and that they still loved each other despite his neglect, and still needed each other. Mr Korshunov told her that he was separated from his Australian wife and not living with her anymore. Mr Korshunov proposed that they should be reconciled and remarry. She said she would think about it and wait until he had sorted the relationship out with his woman in Australia. Mr Korshunov promised to deal with it. She also needed time to think about his proposal. At that time, he did not suggest she go to live with him in Australia.

46. In January 1999, Mr Korshunov told her he was divorced. It had taken longer for him to sort out than she expected. She told him to come to the Ukraine to discuss their getting married. He came in March 1999 and stayed in the flat. They talked and decided to remarry. They did not discuss where they would live until after the wedding. After the ceremony, they had a small party with her sister and two close friends, Lynda and Valery Sinjakov, at a café near the flat.

47. Her husband stayed for another month and then left for Australia. During the month, they discussed where they should live. Her husband wanted them all to live in Australia. After returning to Australia, he sent her two copies of an application for migration to Australia form, one completed in pencil to help her fill out the details. She completed the form and lodged it at the Australian Consulate in Kiev. In September 2000, she was invited to an interview at the Consulate with Greg Ceff. She was very nervous. She tried to answer all the questions but perhaps she did not provide enough details. The interview lasted five hours and she felt Mr Ceff was not happy with the outcome.

48. An officer at the interview, Irina Novozhilova, asked her if she had any documents or paperwork to establish that the relationship with her husband was genuine. She had some letters, envelopes and photos with her which she handed to Ms Novozhilova. Ms Novozhilova looked through them and said she would work on them. Ms Korshunova did not ask how long Ms Novozhilova would need them. She waited in the hall outside the premises for one to one and a half hours after the interview but Ms Novozhilova did not come out so Ms Korshunova left.

49. After the interview, she was anxious to arrange for the return of the letters because she was leaving Kiev to return to Donetsk the following day. She did not see why the officers should keep her personal correspondence - she believes such letters should be kept by the owner. So the next day, Ms Korshunova phoned the Business Centre where the interview had been held and asked to speak to Ms Novozhilova. When she asked Ms Novozhilova about the return of the letters, Ms Novozhilova said she had not had time to work on them. So Ms Korshunova arranged for her son, who was then in Kiev, to collect the papers the following afternoon. She no longer has the letters. After the second interview, she did not consider them of any further importance and so she threw them away.

50. Ms Korshunova said mention of her in the extract from Letter C (2 April 1997) was only in relation to her visiting her son if he were allowed to migrate to Australia. Her migration was not under discussion at that time. She thinks her husband was very lonely and the letter was a cry for help. His thinking about their son's migration was a consolation - a solace. It was not part of a wider plan. However, he was, perhaps, also trying to rehabilitate himself for all the things that had happened in the past and the pain he had caused.

51. With regard to the extract from Letter A, this letter was written after they had met in the UAE, and after Mr Korshunov had sought legal advice about the divorce from his Australian wife. Ms Korshunova took the reference in the extract to a year passing to mean that because Mr Korshunov had made so many trips out of Australia, he should stay in Australia for at least a year. Ms Korshunova denied the letter dated from 1995. They were not corresponding at that time.

52. Ms Korshunova said she was asked to go to Moscow for the second interview in May 2001, with Linda Ryan. The interview lasted for about six hours during which Ms Korshunova was asked to provide more information. Every so often, Ms Ryan would remind her about criminal liability for providing false evidence. The interview was organised to include a telephone call from her husband in Australia. After her interview, she was asked to wait outside and a little later was asked back into the room. Ms Ryan then told her that her husband had admitted everything and that the whole story was a lie. Ms Korshunova denied this and said she did not agree.

53. At the conclusion of the interview, Ms Ryan told Ms Korshunova that she was not considered reliable and would not be permitted to visit Australia. Ms Korshunova said she was offended and very upset by what Ms Ryan said. In Ms Korshunova's profession, many people trust her with their lives and those of their children. Yet Ms Ryan called her untrustworthy. Ms Ryan promised to get a decision to her within 10 days but she had still not received this by the end of 2001. Her husband therefore consulted a solicitor who contacted the Australian Embassy in Moscow to find out what was happening to Ms Korshunova's application. She finally received a decision mid-January 2002.

Submissions

Respondent

54. Ms Hanstein, for the Respondent, submitted that the Applicant and Visa Applicant were involved in a scheme to enable them to migrate to Australia. Evidence of that scheme is to be found in the translation of the extracts. Ms Hanstein submitted that it could be inferred from the content of the Letter A extract (undated) that it was written in 1995, shortly after Mr Korshunov arrived in Australia. It shows that the Applicant married an Australian citizen so that he could come to Australia; he would then divorce that person and sponsor his ex-wife to migrate to Australia. Ms Hanstein submitted that the extract from Letter C (2 April 1997) refers to two possible scenarios: first, to remarriage which would take too long and, second, to their son sponsoring his mother to migrate to Australia. The extract indicates that they were discussing migration much earlier than their evidence suggests.

55. Ms Hanstein submitted that there are aspects of the oral evidence which are not credible. First, the Visa Applicant's claimed lack of knowledge of her husband's visitor visa applications until asked about these at the hearing is contradicted by reference to these in the Decision Record. Second, it is not credible that the Applicant and Visa Applicant did not discuss where they would live until after they had remarried. Third, the Visa Applicant's evidence that she destroyed the letters after the second interview because she had no reason to keep them any more is not credible.

56. Ms Hanstein contended that other evidence supports the Respondent's submission that the Applicant and Visa Applicant were involved in a scheme. For example, the Applicant had no contact with Marianna's children until after he and Marianna had married and he arrived in Australia. The Applicant had not seen Marianna for four years between the time she migrated to Australia and September 1994 shortly before their marriage. The Applicant appears to have given little consideration to difficulties for the marriage posed by Marianna being Jewish and to her having two sons by her first marriage. After their relationship broke down, there appears to have been no resort to counselling or attempt at reconciliation. The Applicant returned to the Ukraine after three months.

57. Ms Hanstein contended that the Tribunal should give weight to the opinions formed by the two departmental officers who interviewed the Visa Applicant. The evidence supports a finding that the Visa Applicant was involved in a scheme to facilitate her and the Applicant's migration to Australia. Her involvement in this scheme and attempts to conceal this from the Department indicates she is not of good character and this outweighs the other character references provided.

58. Ms Hanstein said that if the Tribunal determines that the Visa Applicant fails the character test, then it should not exercise the discretion in s 501(1) to not refuse the grant of a visa for the reasons set out in the Respondent's Statement of Facts and Contentions.

Applicant

59. Mr Korshunov said that the extracts from the four letters are only translations of extracts from the original letters. Such extracts could be interpreted in a number of ways depending on the perspective adopted. With regard to the extract from Letter A (undated), Mr Korshunov said the reference to divorce and a waiting period is a reference to the year of separation required by Australian law before the parties can divorce. This indicates the letter was written in early 1998 after his return from the UAE. The letter was not written in 1995 as the Respondent suggests: at that time he was not a citizen and would have been unable to sponsor a person's migration to Australia.

60. Mr Korshunov said if he and his wife had devised a scheme for their migration to Australia, it is inconceivable that his wife, an intelligent woman, would have provided letters to a departmental officer which might have a harmful effect on the application. The letters were shown to the officer to establish the genuineness of the relationship between him and his wife.

61. Mr Korshunov said he only ever applied for two visitor visas, not three as suggested by the Respondent. He does not know why these applications were refused.

62. With regard to his marriage to Marianna, Mr Korshunov said he made no contact with her sons because he believes one needs to establish such a relationship in person. It is very difficult to establish contact by phone. When his relationship with Marianna broke down, he considered it was for him to decide whether any reconciliation was possible. Counselling is non-existent in Russia and the Ukraine.

63. Mr Korshunov said after his wife's migration application was lodged, it took nearly two years for the Respondent to make a decision. He called the Australian Embassy in Moscow on a number of occasions but was always told no decision had yet been made and he would have to wait. It was only when he consulted a solicitor who phoned the Embassy in about December 2001, that the decision-maker, Mark Thoener, promised the solicitor a decision by mid-January 2002.. When the solicitor, Michelle Bogatyrov phoned again on 14 January 2002, Mr Thoener told her a decision had been made that day (T p34).

64. Mr Korshunov said he has always strongly denied there was a scheme as contended by the Respondent. Remarriage is a part of life. He is now 55 and not in a position to go looking for a young woman to marry again. Moreover, he is concerned about his son who needs his support.

Consideration of the Law and Findings

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

The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry...

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

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

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

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

68. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. The Tribunal finds that the Visa Applicant, Ms Korshunova, was a credible witness. She appears to the Tribunal to be a person of integrity and her oral evidence had "the ring of truth" about it. She is medically qualified and a specialist in immunology. The Applicant provided four references for Ms Korshunova which attest to her good character in relation to her study, her work and her family situation, covering a period of more than 25 years. The Tribunal also found Mr Korshunov's evidence to be credible. The Tribunal notes that he has been married to three different women. While his conduct towards Ms Korshunova in the early 1990s appears to have been selfish and less than virtuous, nevertheless, Ms Korshunova, whom the Tribunal finds was very hurt by his treatment of her and their son in 1994, seems to be convinced of his good intentions in relation to their reconciliation and remarriage.

69. Both the Visa Applicant and Applicant strongly denied that they were involved in a scheme to facilitate their migration to Australia. The Respondent's contention that the Visa Applicant is not of good character and fails the character test is based entirely on her being a party to such a scheme and her allegedly providing false and misleading information to the Department. The evidence that the Respondent has pointed to in support of its contention is the inferences which the Respondent submits can be drawn from a reading of the translated extracts from the letters provided by the Visa Applicant to departmental officers at the interview in Kiev on 6 September 2000 to assist in establishing the genuineness of her relationship with her husband. The only other evidence that the Respondent has pointed to in support of its contention are various incidents in the Applicant's and Visa Applicant's evidence that the Respondent submits are not credible.

70. First with regard to the letters, as the Applicant pointed out, it seems very unlikely that an intelligent person such as the Visa Applicant would show departmental officers personal letters which might implicate her in a migration scheme. Secondly, as the Applicant also pointed out, it is possible that the translation of particular extracts may be affected by the perspective adopted by the person undertaking the translation. In this instance, an independent check of the translations and their reading in the context of each letter as a whole has been made impossible by the Department's loss of the relevant files.

71. The Respondent tried to make much of the Visa Applicant having destroyed or thrown away the original letters after the second interview. While the departmental officers had made copies of the letters and envelopes which were retained on the Visa Applicant's file, now lost, the Visa Applicant may not have been aware of this. She was aware that Ms Novozhilova wanted to "work on the letters".. It was not unreasonable for the Visa Applicant to assume after the second interview that the letters were no longer of importance. Her evidence is that at the interview she was told she was not considered a reliable person. She interpreted this as meaning "untrustworthy", and felt offended and very upset by this.

72. The Decision Record also suggests that there was something suspicious about the Visa Applicant phoning to ask for the return of the letters on the day after the interview. The Visa Applicant's evidence is that the return of what she regarded as personal correspondence had not been mentioned at the interview on 6 September 2000. She phoned the next day because she was leaving Kiev that day to return to Donetsk and, before leaving, wanted to make the arrangements necessary for their return. She arranged for her son, who was then also in Kiev, to collect them the following day. In the Tribunal's view, this is an entirely plausible explanation.

73. As to the Respondent's interpretation of the extracts from the letters, the translated extract from Letter A, which is undated, states as follows:

LETTER A

1. I believed that I would come here, get a divorce and would be close dealing with you. I visited a solicitor and he said that it was necessary that a year had to pass since the day of my arrival in here so that fewer questions could not arise. Otherwise it looks like that I got married and divorced at once but to whom I was going here is unknown. It is necessary to show the fact that I have lived with her at least for a month and then we will be able to start the fulfilment of our plans.

The Applicant's and Visa Applicant's evidence dates this letter to early 1998 on the Applicant's return to Australia after meeting the Visa Applicant and their son in the UAE. The Respondent contends that it dates from 1995 after the Applicant's migration to Australia. But, as the Applicant pointed out, he was hardly in a position to sponsor his ex-wife's migration to Australia so soon after his arrival when he was not an Australian citizen. The Applicant stated that the reference to a year passing is a reference to the period of separation required by Australian law after the breakdown of a marriage where both parties consent to the divorce.

74. The translated extract from Letter B is also undated and refers to the cost of a lawyer acting in relation to divorce and immigration applications. The letter refers to the lawyer starting the process of the divorce after 15 January. The Applicant was unable to explain this letter since, he said, Legal Aid undertook the legal work for his divorce from Marianna at no cost to him. But, in any event, the letter seems to date from post 1997 and does not support the allegation of a scheme.

75. The translated extract from Letter C, dated 2 April 1997, refers to "Artem" (sic). The Applicant agreed that he had sought legal advice to see whether he could sponsor his son's migration. Part of the extract states:

Then when he reaches 18 years old he will be able to sponsor his mother. It is unknown how much time it will take.

The Applicant's evidence is that he did seek advice on whether the Visa Applicant would be able to visit their son if he migrated to Australia. He denied this letter referred to the Visa Applicant's migration. The Visa Applicant's evidence is that she and the Applicant were not on good terms at the time and that only her visiting their son in Australia was raised by the Applicant. Ultimately, the Visa Applicant refused to allow their son to migrate. He had not then finished school.

76. With regard to the translated extract from Letter D, dated 4 November 1998, the Applicant explained that references to PNG and a business visa for the Visa Applicant were related to the possibility of the Applicant undertaking employment in PNG involving the construction of a coffee factory. The Applicant made two trips to PNG of about one month, the first in August 1999 and the second in October 1999. The Tribunal accepts the Applicant's evidence on this.

77. There are two further translated extracts: from Letter E, dated 1 January 2000, and from Letter F, undated, but clearly in relation to the Applicant's sponsoring the Visa Applicant's migration to Australia and discussing the fees involved. By its content, Letter F probably dates from late 1999/early 2000. Neither letter affords any evidence of the alleged scheme. The Tribunal notes the Applicant's evidence that, ultimately, the Applicant handled the completion of his wife's migration application himself with the assistance of a friend, Victor.

78. In summary, the Tribunal is not persuaded that the translated extracts from the letters provide any substantial evidence to support the Respondent's allegation of a scheme. Given plausible explanations from the Applicant and the difficulties of translation and interpretation of the extracts without the context which would be apparent from reading each letter as a whole, copies of the letters having been lost with the departmental file, in the Tribunal's view the translated extracts do not provide any credible support for the Respondent's allegation.

79. The T Documents contain the Department's "Migration Record Case Dump" - the print out of the computer record of the various steps in the processing of the Visa Applicant's migration application (T5). Regrettably, however, it does not contain any record of the interviews conducted with the Visa Applicant on 6 September 2000 and with the Visa Applicant and Applicant on 11 May 2001. These records of interview have been lost with the file. The Tribunal has no way of testing the Visa Applicant's evidence that during the second part of her interview with Ms Ryan on 11 May 2001, Ms Ryan told her that her husband had admitted, in his telephone interview with her, to having devised a scheme to facilitate their migration to Australia. The Applicant emphatically denied this. His evidence was that he was unable to get through by phone at the pre-arranged time.

80. The Tribunal notes that the Migration Record Case Dump does attest to the delays in the processing of the Visa Applicant's application. After the Visa Applicant's first interview on 6 September 2000, no action on the file appears to have been taken until 9 April 2001, a period of seven months, which was when the second interview was arranged. Then after the second interview, on 11 May 2001, no action appears to have been taken on the file until 14 January 2002, a period of eight months. Telephone enquires by the Applicant seem to have produced no action. It was only when the Applicant's solicitor, Michelle Bogatyrov phoned in mid-December 2001, that the decision-maker, Mark Thoener, "undertook to finalise this application in mid-January" (T5).

81. The Tribunal concludes that there is no evidence of any substance to support the Respondent's allegation of a scheme. None of the evidence suggests any misconduct by the Visa Applicant - there is no evidence of any false or misleading statements on her part, nor of any involvement in some scheme. As stated above, the Tribunal found the Visa Applicant to be a credible witness and she came across as a person of integrity. This was supported by the four character references supplied by the Applicant. The Tribunal finds her to be a person of good character and the allegations made by the Respondent to be without foundation. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with the direction that the Visa Applicant passes the character test pursuant to s 501(6) of the Act.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Date/s of Hearing 16 January 2003

Date of Decision 29 January 2003

Representative for the Applicant Self represented

Representative for the Respondent Ms S Hanstein, Solicitor