Barwick and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 412
•23 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 412
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1533
GENERAL ADMINISTRATIVE DIVISION ) Re GRAEME WILLIAM BARWICK Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date23 April 2004
PlaceSydney
Decision The decision under review is set aside. The matter is remitted to the Respondent with a direction that the application is not to be refused on account of the Visa Applicant’s character.
[Sgd] R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – character test – protection visa application lodged – application to Refugee Review Tribunal – application for Ministerial intervention – intervention declined – Visa Applicant outstaying visa period – character test assessed – assessment of “good character” – discretionary considerations – Visa Applicant of “good character” – decision under review set aside.
Migration Act 1958 sections 234, 501
Ministerial Direction 21
Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422
Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321
Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2000] AATA 1244
Re Lachmaiya and Department of Immigration and Ethnic Affairs (AATA 9295, 8 February 1994)
REASONS FOR DECISION
23 April 2004 The Hon R N J Purvis Q.C., Deputy President the application
1. This is an application by Graeme William Barwick (“the Applicant”) seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 29 August 2003. By the said decision the Respondent refused to grant to Mrs Janice Amoranto Barwick (“the Visa Applicant”) a Partner (Provisional) (Subclass 309) visa. The visa was refused on the ground that the Visa Applicant was a person not of good character and the available discretion was not exercised in her favour.
2. In the decision record it is stated in relation to the character test (T2/3):
“Findings Against the Character Test
11. On 30 May 1998, Mrs Barwick arrived in Australia on a visitor visa allowing a stay of three months. She then applied for and was granted two consecutive extensions of her tourist visa. The first extension was for three months and the second for four months valid until 5 March 1999. She subsequently lodged a Protection Visa (PV) application on 13 May 1999, which was refused on 7 June 1999.
12. Mrs Barwick’s refugee claims were based on threats from her ex-boyfriend who she claims was a member of the New People’s Army (NPA), the military wing of the Communist Party of the Philippines (CCP). Mrs Barwick stated that he was upset after she broke off their 3-month relationship prior to her leaving the Philippines to visit Australia. Mrs Barwick’s ex-boyfriend was arrested in a raid and following the event, she was threatened by an anonymous caller. Mrs Barwick further stated that she received calls in Australia from her brother warning her that he had received phone calls from her ex-boyfriend informing him that he wanted to kill her.
13. Mrs Barwick pursued her refugee application through review, which she lodged with the Refugee Review Tribunal (RRT) on 8 July 1999. The refusal of her PV application was affirmed by the RRT on 13 October 1999. A request for Ministerial Intervention was also refused on 6 May 2000. Mrs Barwick remained in Australia under the Lie class action lodged with the High Court on 7 September 2000.
14. However, Mrs Barwick was unlawful for the period 18 November 1999 until 7 September 2000.
15. Mrs Barwick left Australia under Monitored Departure arrangements on 14 July 2002.
…
17…At interview [on 11 November 2002], Mrs Barwick admitted that she had overstayed her visa. She stated that friends referred her to Rex Bamba, a migration agent.
18. Mrs Barwick further stated that upon arrival in Australia she extended her tourist visa because her grandmother needed care and attention. Her grandmother had anxiety problems since undergoing a heart valve replacement in 1997. Mrs Barwick stated that she applied for permanent residence as a Carer…”
3. As to the exercise of the available discretion the decision-maker recorded (T2/5):
“…
28. Mrs Barwick has admitted to illegally prolonging her stay in Australia.
…
31. Mrs Barwick has not previously been warned about the risk of visa refusal under s501.
- Previous convictions in Australia
32. Mrs Barwick has supplied Police Clearance from the Philippines and Australia. Based on this information Mrs Barwick has not previously had any convictions in the Philippines or Australia.
33. In consideration of the protection of the Australian community, taking into account the seriousness and nature of Mrs Barwick’s conduct, the likelihood that such conduct might be repeated and general deterrence, it is open for you to find that Mrs Barwick is at a low risk of recidivism.
…
35. The refusal of Mrs Barwick’s migrant visa may act as a general deterrent to those who seek to remain unlawfully in Australia. It is open to you to find that the refusal of Mrs Barwick’s visa may deter other individuals from committing similar offences.
…
38. Mrs Barwick has shown disregard for the laws of Australia. It is open to you to find that some members of the Australian community may expect Mrs Barwick’s visa application to be refused in these circumstances.
…
40. There are no children of the relationship that would be affected by refusal to grant the visa to Mrs Barwick.
…
42. Mrs Barwick married Mr Graeme Barwick on 23 September 2000. The relationship appears to be genuine. It is open to you to find that refusal to grant the visa to the applicant may cause hardship for both parties. Mrs Barwick has no ties with Australia other than her husband.
43. Mr Barwick is an Australian citizen. Mr and Mrs Barwick state that they first met in November 1999. At interview, Mrs Barwick said that she told her husband about her immigration status in Australia including her unlawful status and her application for refugee status in Australia.
44. Mr Barwick was aware of Mrs Barwick’s immigration status soon after entering into their relationship and was aware of Mrs Barwick’s activities before they married. It is open to you to find that Mr Barwick entered into the relationship in the full knowledge that Mrs Barwick may have difficulties seeking to migrate to Australia.
…
46. Mrs Barwick has no relatives (other than her husband) living in Australia. She has one brother living in the Philippines. Her parents are deceased.
47…Mrs Barwick returned to the Philippines after her applications were finally determined. Mrs Barwick continues to enjoy the rights and privileges accorded to her as a national of the Philippines.”
the hearing
4. At the hearing of the application for review the Applicant was represented by Mr Raymond Charles Turner, solicitor of Yandell Wright Stell Lawyers, the Respondent by Ms Louise Stone, solicitor of Blake Dawson Waldron Lawyers.
5. There was introduced into evidence the documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1 – T33. Documentary material tendered on behalf of the Applicant was admitted as exhibits and marked accordingly:
Exhibit No
Description
Date
A
History of Graeme and Janice Barwick
Undated
B
Statement Mrs Janice Martienzo Barwick
17 March 2004
C
Statement of Santos V Pampolina, J R
8 January 2004
D
Statement of Aida M De Sagun
8 January 2004
E
Statement of Cecilia Aguilar
Undated
F
Statement of Leven Lew A Matienzo
22 January 2004
G
Video and Index of Scenes on Video
Undated
H
Statement of Bella Matienzo
7 February 2004
J
Statement of Ruth Brewster
29 January 2004
K
Statement of Skie Barwick
22 January 2004
L
Statement of Kevin Piper
Undated
M
Statement of Elizabeth and Allen Wilcox
9 January 2004
N
Statement of Anne McPherson
28 January 2004
O
Statement of Christine and Robert W Pearce
8 February 2004
P
Statement of Dr Mark Teng
17 February 2004
Q
Statement of Dr Brett Thompson
20 January 2004
R
Statement of Peter Breuer
23 February 2004
6. Oral evidence was given by the Applicant and the Visa Applicant, the latter by telephone connection with the Philippines upon which they were each cross-examined.
chronology of relevant events
7. A chronology of relevant events is as follows:
1956, 30 May Applicant born in Australia
1972, 11 November Visa Applicant born in the Philippines
1998, 30 May Visa Applicant arrives in Australia
1999, 5 March Visa Applicant’s extended visa expired
1999, 13 May Visa Applicant applies for protection visa
1999, 7 June Visa Applicant refused a protection visa
1999, 8 JulyVisa Applicant applies for review of protection visa refusal by Refugee Review Tribunal
1999, 13 October Refugee Review Tribunal affirms the decision under review
1999, 18 November Visa Applicant becomes unlawful non-citizen
2000, 11 February Visa Applicant seeks ministerial intervention under section 417 of Migration Act 1958
2000, 17 May Ministerial intervention declined
2000, May Visa Applicant becomes engaged to the Applicant
2000, 7 September Visa Applicant joins Lie class action
2000, 7 September Visa Applicant granted bridging visa pending result of class action
2000, 23 September Visa Applicant and Applicant marry
2002, 14 July Visa Applicant departs Australia
2002, 29 August Visa Applicant applies for subject visa
2003, 29 August Visa Applicant’s application for visa refused
the applicable law and direction
8. By section 501(1) of the Migration Act 1958 (“the Act”) the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.
"501 Refusal or cancellation of visa on character grounds
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) 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; or
…"
9. The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 324 it was said:
"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard 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."
10. As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications: see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs. (AATA 9295, 8 February 1994)
11. A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.
12. Direction 21 as here relevant provides:
"PART 1 - APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.
1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ...
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …
1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).
…
Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
…
Subparagraph 501 (6)(c)(ii) - past and present general conduct
1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt or disregard for the law or for human rights.
This could include, but need not be limited to:
· engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt but which on a more likely than not basis are disreputable and reflect poorly on a non-citizens’ moral qualities;
· continual evasion or non-payment of debts;
· continual disregard as to payment of family maintenance;
· involvement in activities such as organized crime, terrorism, drug related activities, political extremism, extortion, “while collar” crime, fraud, breaches of immigration law; or
· involvement in war crimes or crimes against humanity;
(b)whether the non-citizen 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 or misleading statement;
…
PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. … Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process, which takes into account all relevant considerations.
Primary Considerations
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.
Protection of the Australian Community
….
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)
a. The seriousness and nature of the conduct
2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:
…
(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
…
c. general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …
The best interests of the child
2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …
· in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"
13. Paragraph 1.9 of the Minister’s Direction details various matters which in the absence of countervailing factors constitute a failure to pass the character test. As was stated in Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431:
“The words good character should be taken to be used in their ordinary sense namely a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact, whilst the latter is a review [of] subjective public opinion.”
14. In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 it was stated:
“Not withstanding the breach of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the Regulations is of importance. Common sense suggest that the Act and Regulations are not concerned with infractions or patterns of conduct that show weakness or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person who’s lack of good character is such that it is for the public good to refuse entry.”
15. It is contended on behalf of the Respondent that the Visa Applicant in this matter does not pass the character test because she was an unlawful non-citizen in the period from 18 November 1999 to 7 September 2000, being a total of 9 months and 20 days. It is further contented that this conduct constitutes that which would fall within paragraph 1.9 (a) of the Direction and in the absence of any countervailing factors constitutes a failure by the Visa Applicant to pass the character test.
THE RELEVANT FACTUAL SITUATION
16. On the basis of the evidence tendered before the Tribunal I am satisfied that the factual situation relevant to a determination of this matter is in accord with what appears below in these reasons.
17. The Visa Applicant was born in the Philippines on the 11 November 1972. Her mother died when she was 13 years of age. She lost her father when she was 24 years of age. On completing her secondary education she attended college and obtained a Bachelor of Science in Psychology degree. She became employed as a teacher.
18. The Visa Applicant has two aunts and her paternal grandmother in Australia. In late 1997 or early 1998 she applied for a visitors visa to enter Australia, which was granted to her on 5 March 1998. Whilst still in the Philippines and shortly prior to this visa being granted she had met and was proposed to by a Mr Jose Ramirez. She visited his family and whilst there discovered that her fiancé and three other men who were present were members of NPA operating in the area of Mt Banahaw. She observes that (Exhibit B):
“…I was so angry when I discovered it, I have always subscribed to the rule of law. My belief in democracy is very strong. I told him that night our relationship had finished.
In early April 1998 Jose and his friends visited me and I told them to leave me alone for I will not subscribe to their cause. Then the following week they were arrested and I was the focus of attention for dobbing them to the Military although I did not do anything. I tried to avoid them by going to Manila as he said that I will pay for what I have done. He would not listen to me. He came to our house about 4 or 5 times looking for me but each time I was not here. He spoke to my Brother Leven.”
19. The Visa Applicant’s grandmother had been visiting in the Philippines. On account of her state of health a family member was in the habit of travelling with her. The Visa Applicant arrived in Australia with her grandmother on 30 May 1998. Initially she assisted her aunts in caring for her grandmother. The grandmother and two of her aunts are Australian citizens. On account of the grandmother’s then state of health the Visa Applicant applied for and was granted two extensions on her visa. As the grandmother’s health condition worsened the Visa Applicant’s family thought that she should apply for a carer’s status visa. She did apply but (Exhibit B):
“…The carers application returned as invalid on the 6th May 1999. I misunderstood the information and requirements and instead of my Grandmother undergoing the medical I took the medical myself and this made the application invalid.
In April 1999, before the carer's application had being (sic) returned to me as invalid, I had heard from my Brother Leven that Jose and some men had come to our house looking for me and they were quite angry. This worried me a lot because of what he had said that I will pay for what I had done. The following month I heard again from my Brother Leven and he informed me that the situation with my former boyfriend had worsened and he said that my life was now in danger, and there had been several visits from members of NPA, including Jose, who had threatened to kill me and harassing my family. I seek advice from a migration agent who told me that my situation is covered by a Protection Application and on the 13 May 1999, with the assistance of the migration agent, I lodged a Protection Visa application because I believe that my life was in danger if I returned to the Philippines. This is why I did not persue [sic] the Carers Application because my safety was my main concern at that time.
It was about this time that my Brother Leven told me that he was putting up a security fence made of brick and barbed wire with steel entrance gates around our house for protection of his family. Prior to our problem with Jose we never had a fence.
On the 7th June 1999 my application was refused. I was still worried about Jose again and lodged an appeal to the Refugee Review Tribunal on the advice of my migration agent on the 8th July 1999. The Tribunal wrote to me asking me to attend the hearing I had intended to do this but after talking to my migration agent I did not attend as he said that I had no addition evidence [sic] and that he would look after it on my behalf and he said don’t worry everything will be alright.
On the 13 October 1999, my appeal was refused. In late October 1999, my migration agent told me that he did not agree with the decision and he told me that he could write an appeal to Mr Ruddock, I asked him to do this as I was still worried about Jose as he was still harassing my Brother Leven and he told me that I would continue to be legal until I received an answer.”
20. It was in November 1999 that the Applicant and the Visa Applicant met. Shortly thereafter (Exhibit B):
“…I told Graeme [the Applicant] everything there was to know about me, my immigration status, my former boyfriend, the applications I made to Immigration and I was waiting on an answer from Mr Ruddock of my appeal through my agent.”
21. In early 2000 (Exhibit B):
“…I phoned my agent to check on my application to Mr Ruddock and found that he had not done it. Graeme took me the next day to his office and it was lodged on 17 January 2000. Graeme asked some questions and we were told I would be legal while the appeal was being considered. We were not told that I needed my passport stamped…
In late May 2000, I received a letter dated 24 May 2000, telling me that my appeal was refused…
In the first week of June 2000 my fiancee Graeme suggested I get another opinion. So he arranged this and we were told by Mr Christopher Livingston, a solicitor, that my case may not have been correctly handled and he advised me that I should join the Lie Class Action in the High Court, and if successful he would be able to put a proper case for me. I had to supply documents to see if I was eligible and later I was told I was a member of the High Court Class Action in a letter dated 7 July 2000…
In March 2002, my husband and I are concerned at how long the Class Action is taking. We sought advice from Mr Kofi Osei, a Barrister from Caprock Immigration Consultants, it was then that we found out that because we were married my legal situation had changed from before and that the correct thing to do now was to go back to the Philippines and apply as a spouse application to be with my husband Graeme.
Graeme encouraged me to do this so my papers can be processed properly and so that we can get on with our lives together. My hesitation of returning to the Philippines was subdued somewhat by the fact that Jose has not been seen or heard of for some time, my husband Graeme was returning to the Philippines with me and that the Legal advice that I had been given was that I had to go back to the Philippines to be able to apply for a Spouse Visa…
In August 2002, after obtain some additional papers, I lodged my Spouse Visa application with DIMA.”
22. The Applicant involved the Visa Applicant in activities with various members of his extended family. She came to know them by visiting them with the Applicant and spending holidays on their family farm. They became engaged in May 2000 and married in September of that year. She has maintained contact with relatives of the Applicant and their children be it by telephone or video since she returned to the Philippines. Whilst in Australia she continued to assist in the care of her grandmother. The Applicant has maintained a fondness with the Visa Applicant’s grandmother and her aunts and as he said “we have become close to each others families”. As the Visa Applicant put it (Exhibit B):
“Graeme is very well liked by my Grandmother and my Aunties. The same goes for me I often visit Ruth, Graemes sister and my sister-in-law, Isabella and John our niece and nephew. We are all very close. I refuse to see a future that would no include Graeme, my grandmother, who recently underwent surgery and would become very stressed if she knew of my current situation.”
23. The Applicant has visited the Visa Applicant in the Philippines on ten occasions since she left Australia. They have also spent time together in Thailand and Singapore.
24. The Applicant is employed as an Airline Service Operator with Qantas. He had been previously married in October 1985 obtaining a divorce in January 2000. There were no children of that marriage. He does have a daughter Skie of another relationship. Skie was a bridesmaid at her father’s wedding with the Visa Applicant and has recently become a mother.
25. No issue was raised on behalf of the Respondent as to the factual situation propounded by the Applicant and the Visa Applicant. Even be it the Visa Applicant was not accepted as a refugee and not granted a protection visa it was not suggested that her narration of the threats made against her and her fear and concern were not true. I accept both she and the Applicant as witnesses of truth.
CHARACTER ASSESSMENT
26. It is true to say that the assessment of character is to be made by appraisal of objective criteria, which bear upon the “endearing moral qualities of a person” and “not to the good standing, fame and repute of that person in the community”. The latter is a subjective assessment. The Tribunal is to pay heed to the observable conduct and behavior of the Visa Applicant and the motivation for it. No one may be perfect, we all may show “weakness or blemishes” in character. The existence of the latter may not reflect on good or bad character but more on the nature of the make-up of the person and not on whether he or she is truthful but on, for example, whether the person is able to make up one’s mind, has a capacity to reasonably assess a situation or adheres to a moral code. The quality that the Tribunal has here to assess is the lack or otherwise of “good character” such that “it is for the public good to refuse entry”. As the Direction paragraph 1.9 (a) puts it, where a person is found to be involved in activities indicating contempt or disregard for the law the Tribunal may well be satisfied that such person is a proven or potential law breaker.
27. With reference more particularly to the present matter, it is not so much that the Visa Applicant stayed in Australia when she no longer had a valid visa. This might constitute a breach of the law. But was it conduct on her part that is indicative of a contempt for or disregard of the law, showing a relevant defect in her character? This must depend upon the circumstances in which the overstay occurred.
28. As I have already noted no issue was taken with the Visa Applicant’s recitation of events or with her explanation for not applying for a renewal of her visa when it expired there then being no bridging visa in existence. Initially she sought to remain in Australia to assist in the care of her grandmother. She then became afraid of returning to the Philippines and sought protection. She was perfectly entitled so to do. I accept that she felt she had good reason to make her applications. There was no suggestion otherwise by or on behalf of the Respondent, and I do not find that she was other than truthful. She accepted available migration agent and legal advice. Other than for the period when an application to the Minister had erroneously not been made, and this by reason of the agent not carrying out her instructions, if she had applied for an extension to her visa or a bridging visa no circumstance has been shown which would have disentitled her to the same.
29. I do not find a lack of good character in the Visa Applicant. I do not find that she acted in contempt or in disregard for the law. My assessment of her is that she is a law-abiding person. This measure of the person is strengthened by the evidence of persons (Exhibits D, E, F, H, J, K, L, M, N and O), who knew her and are able to say that contempt or disregard of the law, the like of that alleged against her, is inconsistent with the character and make-up of the Visa Applicant as they know her.
DISCRETIONARY FACTORS
GENERALLY
30. As I have not found the Visa Applicant to be not of good character it is unnecessary for me to consider the discretionary considerations otherwise available. However, as attention was directed to them at the hearing and evidence given in relation to such factors as may have become relevant, it may be helpful for me to offer observations in relation to them.
31. I do not find that the Visa Applicant sought to circumvent Australia’s Immigration Laws. She did seek to rely on procedures available to her and with honest intent. Whilst for a part of her stay in Australia she was not legally entitled to remain, she did not act with an intent to breach the law. She believed at all times that she was legally able to reside with her relatives and then her husband in Australia.
32. The Visa Applicant did not show a disregard for Australian laws in order to obtain advantages for herself. She was entitled to make each of her several applications to the Respondent based on a situation, which she maintained, and the Tribunal accepts, as truthfully narrated. The Respondent did not maintain otherwise. I do not see a situation existing which would be replicated by another person. The circumstances were peculiar to her. She did not engage in activities, which indicate a disregard for the law. This being so the Australian community, that is the informed, right thinking middle of the road Australian, would expect that she would be allowed to enter and remain in Australia.
33. Whilst there are no relevant children of the Applicant and Visa Applicant, there are relatives who would suffer hardship as earlier discussed in the event of a visa being withheld. Whilst accepting that the Applicant was aware of the Visa Applicant’s migration status at the time of their committing themselves to marriage, the Applicant would nevertheless experience emotional and physical depravation and hardship if he is not able to live in Australia with his wife. Relocation to the Philippines is not an option.
THE APPLICANT’S STATE OF HEALTH
34. The Applicant himself says (Exhibit A):
“…In 1994 I was diagnosed with …arterial fibrillation, which at the time was only spasmodic. However, in 1996 the condition developed further and was [sic] now permanent. Since then I have been admitted to St George Hospital on 4 separate occasions to have a procedure known as cardio version to rectify the condition. All have been unsuccessful and therefore I will be on medication for the rest of my life to reduce my heart rate…I am also on other medication to reduce the chance of having a stroke. There is a history of heart problems in my family…”
35. More particularly a medical practitioner, Doctor B Thompson, in his report of 20 January 2004 (Exhibit Q) states:
“He suffers from chronic atrial fibrillation that has failed multiple (four) attempts at cardioversion. He is unable to take warfarin due to difficult venous access for monitoring of its effects, and so is it (sic) high risk of having a stroke. This could happen at any time and would come out of the blue. If this was to happen in a third world country such as the Philippines it is possible that his life would be at risk as at the level of care required for a more severe stroke would not be available there. He is on lifelong medication for his fibrillation – being Lanoxin 250 mcg 1 daily; Cardiprin 100 daily; Noten 50 mg ½ daily.
He also suffers from mild-moderate sleep apnoea, documented in a study in 1991. This is a condition associated with increased morbity and mortality.
He has been suffering from significant anxiety symptoms from time to time, in relation to the separation from his wife due to current problems with immigration laws. He takes sedation from time to time to correct insomnia. If in the unfortunate event that his wife was denied a permit to live in Australia I would expect that he would suffer from increased anxiety as well as depression that could possibly require longer-term medication”
THE FAMILY CONTACTS AND RELATIONSHIPS
36. Both parties have developed close ties with members of the other’s family. The Visa Applicant has spent time with and involved herself in the activities of the Applicant’s sister Ruth, her husband and children as well as with his daughter Skie. The Applicant has likewise come to know and be good friends with the extended family of the Visa Applicant. I have no reason to accept a situation other than that where the Applicant and Visa Applicant have not only become very close to one another but have developed meaningful relations with their partner’s relatives. Measurable hardship not recognized by the original decision-maker would be experienced by all of these people if the Visa Applicant should not be permitted to enter Australia. The situation was so expressed by the Applicant’s sister when she said (Exhibit J):
“…Janice and I have formed a bond of understanding and trust, she developed a strong relationship with my eldest daughter Isabella…I have the utmost trust in her where my children are concerned and they reciprocate her affection without trouble…Janice has become so much part of our family and that of my childrens that we miss her deeply. We telephone each other regularly to tell of our happenings. It is however distressing to hear my children express their feelings towards how much they love and miss Janice and how they do not fully understand why she has not come home yet…Janice has touched so many peoples lives, she has an extremely gently and kind nature. She has shown herself to me to honest and trustworthy and has a strong commitment to family. She is devoted to her family and that of Graeme. She has enriched our lives and has encouraged both our families to remain just that even in her absence. A very selfless individual.
Over the past 18 months I have witnessed the stress that Janices absence has placed on Graeme. He has phoned Janice a minimum of 3 times a week every week and he has visited her overseas 10 times…She can and will contribute greatly as an Australian citizen.
Janices absence from Australia effect many peoples lives both family and friends, both emotionally and physically. But of the utmost it is separating two people whom are so much in love and are totally committed to each other and it serves only as an injustice to humanity to keep them apart.”
DECISION
37. The Visa Applicant is not not of good character. And even if an adverse finding had been made as to character, the discretionary factors would weigh in her favour. Accordingly, and for the reasons herein before set forth, the decision under review is set aside. The matter is remitted to the Respondent with a direction that the application is not to be refused on account of the Visa Applicant’s character.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
AssociateDate of Hearing 1 April 2004
Date of Decision 23 April 2004
Representative for the Applicant Mr Turner
Representative for the Respondent Ms Stone
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