Post hearing submissions
29 After the hearing, on 8 March 2016, the appellant's representative sent a further written submission to the Tribunal wherein it was stated that the appellant had not been arrested or charged at the time of the offence on 12 October 2000, and that an indictment was filed on 25 October 2000. The representative stated that the appellant had never been served with any warrant, and was not aware of "any charge or warrant" at the time of lodging the visa applications in Australia. An attached letter from the attorney in the United States stated that the docket showed that "all matters regarding these charges" (being the indictment and the issuing of a warrant) occurred after her initial detention on 12 October 2000.
30 The terms of this post hearing submission are significant. The representative submitted as follows (omitting irrelevant parts with own emphasis):
2. Offence in the USA-False or Misleading information
There is an allegation that the applicant did not disclose the charges (or warrant) when filling out her student visa and spouse visa applications. The applicant's response and that of her husband, is that they were not aware of the charges or any warrant that had been issued when filing [sic] out both applications and that they did not deliberately or knowingly provide false or misleading information to the department.
We have attached the Criminal Docket now received from the USA authorities. We have also attached the applicants USA lawyer's explanation as to how to interpret this document - Attachment 2
The conclusions that can be drawn from the attached documents are as follows:
(i) The offence was committed on 12 October 2000.
(ii) The applicant's evidence is that she was released from hospital after she had been arrested without charges being laid against her. Her evidence is that the police officer gave her his card but she never heard back from the police after her discharge from hospital.
(iii) The docket sheet shows that the case was opened, indictment filed and the case was assigned on 25th October 2000, some 13 days after the initial offence (the date she was initially found to have committed the offence).
(iv) Had the applicant been arrested, her criminal docket would have stated that she had been arrested and served with the warrant but the docket does not show this. The applicants USA lawyer has attached by way of example, another docket for another client of his to demonstrate the entries that would appear on the docket for the applicant if in fact she had been served with the warrant and had been arrested at any time.
(v) This is consistent with her evidence and that of her husband.
(vi) The applicant also gave evidence that she was employed as a TV presenter in Mexico and as an actress and was very well known in both Mexico and the USA because the TV programs she appeared in were also broadcasted in the USA (Mexican TV channels).
(vii) She also gave evidence that she had crossed the Mexican/USA border countless times after her offence in October 2000 and she was never apprehended nor spoken to about the offence or criminal docket. She often visited her parents and son who lived in the USA and were USA citizens. She was born in the USA and her father is a USA citizen which means the applicant herself is also a USA citizen. She lived in Mexico because she worked in Mexico.
(viii) It is highly unlikely and improbable that the applicant would have entered the USA numerous times after her offence in October 2000 if she was aware that there was an outstanding warrant for her arrest. The fact that she entered the USA so many times supports her evidence that she was never aware of any outstanding warrant.
(ix) Despite this, the Criminal docket from the USA which is now attached demonstrates that no action was ever taken against her until 25/10/2000 and she was never served with any warrant (the docket does not show any entry to demonstrate that any warrant had been served or that she had been arrested - see example docket).
(x) Given the evidence before the tribunal, there is no evidence that the applicant has provided any false or misleading information to the department when lodging her student visa application on 3rd January 2012 or when she lodged her partner visa on 25th March 2013 as on both occasions she was not aware of any charges or warrant that had been issued in relation to offences that she is alleged to have committed on 12th October 2000. The applicant only became aware of the outstanding warrant when she received the letter from the department dated 27th August 2015 (the notice of intention to consider cancellation).
3. The outstanding charges in the USA
There has ben [sic] no finding of guilt at this stage against the applicant.
The fact that the Tribunal concludes that the applicant did not knowingly and deliberately provide false or misleading information to the department in the two visa application[s] which she has made, does not absolve her from ongoing investigation and prosecution from the authorities in the USA.
The applicant and the USA authorities will need to deal with these matters in due course and the outcome of those investigations and proceedings is yet unknown.
4. Has the applicant provided "incorrect" answers when she lodged both visa applications?
The only matter before the Tribunal is whether there is clear and probative evidence to conclude that the applicant provided false or misleading information on 3rd January 2012 when she made her student visa application and on 25th March 2013 when she lodged her partner visa application.
[…]
The criminal docket received by the tribunal for "Case 3:00-cr-01753-DB All Defendants - USA v Contreras filed on 25th October 2000" makes it clear that at the time the applicant lodged her student visa application on 3rd January 2012 and her partner visa application on 25th March 2013, the applicant in this case has not been served with any outstanding warrant nor arrested in relation to this warrant and charges. She was not aware of any charges nor any criminal proceedings. There is no entry on the criminal docket to suggest otherwise.
Further, there is no information before the Tribunal which demonstrates conclusively that the applicant was aware of any outstanding warrant or that it had been served on her before she lodged her student visa and spouse applications. There must be clear and probative evidence before the Tribunal to come to such a conclusion and there is no such evidence before the Tribunal.
There is no doubt that the applicant may have suspected for many years that some legal proceedings may be issued against her when she was apprehended for her offences on 12th October 2000. However, the relevant questions asked of her in both the student visa and partner applications which she lodged did not ask her any questions about:
• Whether she had committed any offences?
• Whether she suspected that she may be charged with any criminal proceedings in the future?
Consequently, whilst the applicant may have had a concern or suspicion about what may eventuate from her conduct on 12th October 2000, the questions asked of her were very specific and did not extend beyond then [sic] two questions actually asked of her.
[…]
5. The Visa holder's circumstances
The visa holder and her husband have been separated for a number of years but are still married. They have not taken any steps to divorce at this stage.
They have a son [Child A] who is 3 year[s] of age.
He is an Australian citizen who lives with the visa holder who is responsible for his day to day care and wellbeing. The evidence before the Tribunal is that the visa holder as the mother has custody of her child by virtue of Family court orders giving her custody whilst the father Hamish, has agreed access to [Child A] on specified days and times.
The evidence of both the visa holder and Hamish the father of [Child A] was that they have joint commitment to [Child A's] ongoing care and wellbeing. Hamish gave evidence that he accepts that [Child A's] best interest is served by him being with his mother who can care for him constantly. His evidence was that he could not provide his son with the level of care that is currently provided by his mother and the current arrangements which they have in relation to the custody of [Child A] are the most acceptable arrangements.
Australia is a signatory to the International Convention on the rights of the Child.
Article 3 of the convention provides that "The best interests of children must be the primary concern in making decisions that may affect them."
Article 1 of the Convention defines a child as a person below the age of 18yrs.
Article 9 of the convention provides:
Children should not be separated from their parents unless it is for their own good. For example, if a parent is mistreating or neglecting a child. Children whose parents have separated have the right to stay in contact with both parents, unless this might harm the child.
If the visa holders visa was to remain cancelled, there are serious questions about what may happen to [Child A].
[Child A's] father, Hamish gave evidence that he would not consent to his chid living overseas with his mother and the applicant also gave evidence that she would not leave her child and would take all action necessary to ensure he remained under her care and custody.
The interests of [Child A] are very relevant considerations for the Tribunal in exercising its discretion as to whether the applicants visa should remain cancelled or not in circumstances where the Tribunal has found that there are grounds for cancellation.
The Tribunal does not need to turn its mind to this question as there is no evidence before the tribunal that the visa holder has provided incorrect answers to visa applications which she has previously made and there are no grounds for the cancellation of her current BS Partner sub class 801 visa which was granted to her on 17th July 2014.
(Emphasis added.)
31 It is unnecessary to refer further to the information given by the attorney from the United States, which is summarised for present purposes in the letter. However, one matter that is apparent from the attorney's letter dated 24 February 2016 and earlier email correspondence that is significant is that on 25 October 2000 a bench warrant was issued "for" the appellant, and the case was reassigned from one judge to another judge on 9 June 2003. It is also clear from the attorney's correspondence that an indictment was issued in addition to the warrant for arrest on 25 October 2000, although neither were served. The warrant was said to be "still open" - the significance of this as relied upon by the attorney is that it was not served, thereby showing the appellant had no knowledge of it (which was the argument being put forward on her behalf).
32 The Tribunal itself rehearsed the position in relation to the material provided by the attorney from the United States and the position of the appellant and her knowledge:
[21] Instead of independent country information however, the applicant has only submitted selected Information provided by her attorney who is handling the matter in the United States.
[22] The Tribunal has considered the information submitted with the submission made above by the applicant, dated 9 February 2016. The attachments include an email from the applicant's attorney, dated 10 February 2016 stating, "The nature of her charges are possession with intent to distribute a controlled substance marijuana/importation of a controlled substance marijuana. She was never served with a warrant nor was she ever arrested she was detained at the El Paso port of entry at which time she was transported to a hospital and then released. The warrant when [sic] active several months afterwards but was never served nor was it put on any system. It is still not on any system this [sic] you can't look it up. However, it is active".
[…]
[25] When the Tribunal put to the applicant at hearing that it was unlikely that just because she went to hospital she was not issued with a summons or some documentation referring to charges, the applicant replied that when she went to hospital the officer just gave her his business card and left and that was that. The Tribunal finds this account somewhat implausible, particularly as the Tribunal gave the applicant an opportunity to provide first-hand information from the authorities that she had not been arrested and had not been required to attend court and had never breached her bail conditions as she claims. These were assertions made by the applicant and her attorney without credible supporting documentation.
[…]
[27] After the hearing the Tribunal made it clear that the facts of the case, despite the attorney's emails, were still unclear and that without independent country information the Tribunal could not rely on what has been provided by her attorney.
[28] The attorney has now submitted that the applicant committed the alleged offence on 12 October 2000 but that she was not issued an indictment or warrant for arrest until the 25 October 2000. A docket of the order of events has been presented also which the attorney argues shows that "there is no way to prove that the warrant was served because it is still open, if it had been served then the next docket entry would show arrest. I have sent an example docket sheet of what it would look like had she been arrested after a warrant was issued". The Tribunal has had regard to this sample docket which shows that the defendant in that case was arrested in February 2015 and that she had an order for issuance of the warrant in March 2015.
[29] In a submission dated 8 March 2016, the applicant's current migration agent argues that had the applicant been arrested her criminal docket would have stated that she had been arrested and served with the warrant, but her docket does not show this. Again it is argued that it is improbable that the applicant would have been able to enter into and out of the US after her offence in October 2000, if she was aware that there was an outstanding warrant for her arrest. It is also claimed that the applicant was employed as a TV presenter in Mexico and as an actress and was very well known in both Mexico and the United States, yet the Tribunal has not been able to find any evidence of the applicant having such a high profile from its searches on the web.
[30] The Tribunal has had regard to the criminal docket submitted in respect of the visa applicant. The Tribunal notes that it states that a Bench Warrant was issued for the applicant on 25 October 2000, but there was no mention of an arrest or the issuance of the warrant to the applicant.
[31] The Tribunal notes, however, that the criminal docket submitted has no official quality about it. It is not signed by a court official or by a magistrate or Judge. The Tribunal places some, albeit limited weight on this document as its provenance is difficult to verify. Furthermore it has been presented out of context as the Tribunal finds it implausible that other documents that would shed light on the entire sequence of events from the law enforcement authorities' perspective are not available.
[32] The Tribunal has difficulty accepting that the applicant's attorney has provided a full picture of the applicant's circumstances given that its own country research indicates that by its very nature a Bench Warrant has involved a prior process involving arrest and bail. A website setting out the definitions of various warrants states the following:
Other Types of Arrest Warrants:
Bench Warrant
Bench Warrant: An arrest warrant for a defendant who has been discharged on bail and subsequently fails to appear in court. (P.C. ss 979 et seq.)
A bench warrant, issued by a neutral and detached magistrate upon a defendant's failure to appear, is legal justification for making entry into a residence in which there is probable cause to believe the subject of the warrant is hiding, despite the fact that such a warrant is issued without a finding of probable cause. (United States v. Gooch (9th Cir. 2007) 506 F.3rd 1156.)
[33] This information clearly shows that the Bench Warrant's inherent definition involves that a defendant has been discharged on bail and subsequently failed to appear in court - a matter the applicant's attorney appears to refute. This information would indicate that the applicant's departure from the United States was to evade facing this warrant which had been issued because the court considered that the applicant was in hiding,
[34] This interpretation of the definition of a Bench Warrant is supported by further country information. EntryWaiverLaw, Immigration Lawyer in the United States has provided basic online advice about travelling to the United States with a US Warrant. The article [is] entitled "I have a Bench Warrant, Can I Still Visit the United States?" The immigration lawyer writes:
A bench warrant is used to arrest a defendant and bring them before the court, an obligation that they guaranteed when they posted bail in order to be released from custody.
[35] Again the information confirms that a Bench Warrant is not defined as a general warrant but has a particular meaning involving the case where the defendant has guaranteed that they would return to court to face charges, after being granted bail.
[36] The Tribunal has taken into account the attorney's emails but in weighing them against the research undertaken by the Tribunal is not satisfied that the applicant's attorney is a disinterested party in this matter. The attorney was engaged after the visa was cancelled which is when she claims she became aware of the Bench Warrant, and he is also acting as an advocate for her in her immigration issues. The fact that her attorney who would have access to a wide range of independent information on criminal procedure and practice in the USA, has not presented any academic or other research in relation to the meaning of a Bench Warrant and why it was plausible that the applicant was not aware of the outstanding charges against her, leads the Tribunal to place lesser weight on the emails of the attorney.
[37] The Tribunal notes that the attorney also says that the applicant would simply have to attend a diversionary process were she to return to the United States. If this is the case the Tribunal questions why the applicant has not already returned the US to resolve the matter conclusively.
[38] Having assessed the information overall, the Tribunal has concerns about the credibi1ity of the applicant and considers that it is likely that the applicant has been issued with a Bench Warrant because she did not appear before the court as she had undertaken to do during the bail application process. This being the case it belies the applicant's claims that she was unaware that she had charges against her and that in interpreting Questions 58, 76 and 86, she was responding in a literal sense and truthfully.
[39] If the applicant had skipped bail, so to speak, the applicant would have been fully aware of this and indeed would have been complicit in concealing from the immigration authorities that she had "Been charged with an offence that is currently awaiting legal action" when she lodged her Student visa and her Partner visa.
[40] The applicant's credibility is also marred because over time she has given different accounts of how she came to provide the incorrect information. Initially she stated that her ex-husband had filled in the forms incorrectly and that she had relinquished all responsibility to him for filing the application. Later and at the time of review, she has revised her claims to state that her previous migration agent gave a completely wrong account of what happened and that she deliberately had not said anything about being charged with an offence that was currently awaiting legal action, because no warrant had been issued against her and she was totally unaware of the authorities wanting to deal with the matter. After the policeman gave her his business card and did not pursue the matter she just assumed that the matter was over and she was free. Therefore when the migration applications were being filled in she literally entered truthful details because she was not aware that any legal action against her was afoot in the United States.
[41] Even if the Tribunal were to accept the applicant's changed explanation for the incorrect answers given (section 101(b), (and given the research information above, the Tribunal does not accept it), the visa applicant must have been under no illusion that the question asked at Question 58 was aimed at disclosure of any unresolved criminal matters overseas. The Tribunal considers that it borders on fanciful that in committing a felony in the US, the applicant considered that she had no charges to answer, particularly when it would appear that the Bench Warrant was issued because she had skipped bail.