Bellamy and Minister for Immigration and Multicultural Affairs - [2000] AATA 960

DECISION AND REASONS FOR DECISION [2000] AATA 960

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1423

GENERAL ADMINISTRATIVE DIVISION       )
           Re      WILLIAM BELLAMY
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date5 September 2000
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 309 spouse visa – citizen of the Philippines – not a person of good character – past and present general conduct – lodgement of application for protection visa - application false – application refused - request for ministerial intervention – request refused – continued working illegally – allegation of fraud and malpractice on part of the migration agent – consideration of other general conduct – not a person of good character – consideration of exercise of the Tribunal's discretion – consideration of the need to protect the Australian community – need to send a strong deterrent message – consideration of the expectations of the Australian community – legitimate expectation that the visa applicant's conduct should not be rewarded – consideration of the effect of the separation on the applicant – acknowledged emotional hardship – decision affirmed
Migration Act (1958) s501
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780
Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, & May 1997)
Irving v Minister for Immigration, Local Government and Multicultural Affairs (1996) FCR 422
Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187
May v Minister for Immigration and Multicultural Affairs [2000] AATA 480
Santos v Minister for Immigration and Multicultural Affairs [2000] AATA 567

REASONS FOR DECISION

5 September 2000 Dr D. Chappell, Deputy President
BACKGROUND Application and Hearing

This is an application by Mr William Rodney Bellamy, the review applicant, for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister), pursuant to s501 of the Migration Act 1958 (the Act), refusing to grant to his wife, Ms Lolita Bellamy (the visa applicant) a subclass 309 spouse visa. The refusal was based on a finding that Ms Bellamy was not a person of good character. Section 501(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Mr Neil Mayell of counsel, instructed by Mr Raj Palany, represented Mr Bellamy at the hearing. Both Mr and Ms Bellamy gave personal testimony to the Tribunal as did a number of other witnesses whose names will appear on the record. Ms Jodie Maurer of the Australian Government Solicitor's office represented the respondent. No witnesses were called on behalf of the respondent.
The Tribunal had before it documents and supplementary documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act of 1975 (the T and S documents). A number of exhibits were also received into evidence. They too will appear on the record.
Circumstances Leading to Visa Refusal
The following general facts and chronology of events, which led ultimately to the refusal by the respondent of the visa which was sought by Ms Bellamy, were not in dispute between the parties. Ms Bellamy was born in the Philippines on 22 June 1957. She grew up in that country, completing her high school education in 1977 and graduating from a secretarial college in 1980 (T: 198). Following her graduation, she worked in a secretarial and clerical position with a Filipino business before going to Hong Kong in 1987 where she was employed as a domestic help.
On 13 December 1996, Ms Bellamy arrived in Australia on a visitor's visa which was valid for a period of three months. On 14 January 1997, Ms Bellamy applied for a protection visa in her maiden name, Lolita N. Cube (S5, S6). In that application, the following responses were given to questions asking about the reasons for claiming refugee status (T:199-202). In response to question 35 which reads:
I am seeking protection in Australia so that I do not have to go back to:
(Give name of country or countries)

Ms Bellamy indicated "Hong Kong/Phils". In response to question 36 which reads:

Why did you leave that country?

Ms Bellamy stated:

I left Hong Kong last December because I was afraid that the HK police are after me and the organization I am a member of Migrante (organization of Filipino migrant workers).
In November 1996, Migrante joined forces with other groups and staged a pro-democracy demonstration outside the HK Convention Center. The demonstration got out of hand and led to the arrests of our colleagues and other activists. After that incident, the HK police are after the organizers and coordinators of that demonstration, I am afraid that they will be after me.

In response to question 37 which reads:

What do you fear may happen to you if you go back to that country?

Ms Bellamy stated:

If I go back, I fear that I will be persecuted. If I go back to the Philippines, I also fear that the same will happen since the recruitment agency that processed my papers had me blacklisted in the Philippines which I found out from my colleagues.

The form from which I have been citing, which was signed by Ms Bellamy, contained a declaration that the contents were true and a warning that the provision of false or misleading information was subject to penalties under the Act. The date of the signature of Ms Bellamy on that particular folio (S: 205) is 8 January 1997. As noted earlier she arrived in Australia on 13 December 1996.

Ms Bellamy's application for a protection visa was refused by a delegate of the Minister on 22 May 1997 (S7: 206-207). Ms Bellamy then applied for review of that decision by the Refugee Review Tribunal (RRT). The review was conducted and the refusal affirmed on 12 November 1997 (S8). The decision of the RRT noted the claims that were made by Ms Bellamy. The claims were the same as those which I have already read from her original protection visa application. The RRT also noted the following:
Ms Cube was invited to attend a hearing of the Tribunal on 12 November 1997. On 5 November 1997 her representative advised that she did not wish to attend this hearing. Later the same day, Ms Cube contacted the Tribunal with the assistance of the friend and advised that she had been unable to contact her representative and did not know whether she was required to attend the hearing. She was advised this was not a requirement and also told that if she wished to attend a hearing she should advise the Tribunal in writing. Ms Cube did not contact the Tribunal again and did not attend on the day
(S: 216-217)
On 29 December 1997, Ms Bellamy having again been refused a protection visa by the RRT, sought the exercise of the Minister's discretion under s417 of the Act (T7: 99). The request for the exercise of that discretion read, in part, as follows:
My full name is Lolita Cube and I was born in the Philippines. I advise herewith that I disagree with the decision by the RRT and the Department that I am not a refugee, because I believe that neither of them has taken into consideration humanitarian grounds while my application was in process of being determined. I have seen no evidence of this in either decision record. For this reason I request your intervention in this matter with regard to finalising my application for Protection Visa.

She then went on to describe what she claimed had happened to her in Hong Kong:

… Furthermore I fear that I would experience problems from the agency which recruited me in the Philippines for my part in the demonstrations. I was informed that the agency which recruited me to work in Hongkong [sic] has placed me on a blacklist. I fear problems if I was to return to the Philippines. It would be extremely difficult for me to survive if I was blacklisted, because all other agency's [sic] would be notified of this and no one would recommend me for employment overseas. As there are no jobs in the Philippines I would be denied fundamental human rights which is to have freedom to work.
I believe that the Department and the RRT have a very limited knowledge of human rights if they refuse to accept basic needs of a human being to work for a living. I understand that my claims may not fully meet the criteria, but I implore you to consider the facts as I have documented them. I trust that you will take into consideration my fear for survival.

The Minister declined to exercise his discretion under s417 on 24 April 1998 (T9) and on 2 June 1998 Ms Bellamy married Mr Bellamy, an Australian citizen (T15). The next day, that is 3 June, Ms Bellamy departed this country for the Philippines. On 6 June 1998, Ms Bellamy lodged a spouse visa application in Manila. She was subsequently interviewed by officials of the respondent at the Australian Embassy in Manila. The first interview was on 27 August 1998 and the second on 10 May 1999. The interview record stated, in part, the following:
The PA previously married BUENAVENTURE CUBE JR on 7 Sept 1980. PA got divorce in a/a on 05 March 1998. Last saw him in 1994 when PA's mother died. PA gets to see him when she visits her children in her mother-in-laws [sic] place in Sta Rosa Laguna.They have three children together RICHIE 17, MAYETTE 16, and MARITESS 14. Claims all financial support comes from PA, their father seldom give any support to his children. PA further claims that she does not know where he lives. He just visits their children every once in a while.
PA's parents deceased. Have 3 sisters (1 sister Crasencia VASSERMAN from Canberra, 2 are in the Phil [sic]), 7 brothers (1 brother EDUARDO NIEVA in Darwin, 1 brother deceased, the rest in the Phil).
PA has been to a/a once. PA applied for her v/v in Hong Kong. PA worked as a Domestic worker for the past 10 years. Was granted a v/v on 051296 for 6 weeks no further stay. Entered a/a on 13 Dec 1996 and left 03 June 1998. Before visa expired pa applied for BV. Knew about the BV thru [sic] her sister and cousin AVELINA TORRES PIEPER, which PA knew nothing about. Reason for applying was to work in order to support her 3 children and she wants to stay in a/a. PA's cousin took PA to an agent ABEL MIRANDA. PA just told Abel that she wants to apply for BV. Abel explained to them what the BV was is refugee/protection. But PA still continued with application as she claims she did not understand it then. Paid Abel $1500 which PA borrowed from her cousin. Claims Abel just asked PA to sign a form and he made up story.
(T: 172)
On 23 August 1999 the delegate of the Minister made the decision to refuse the visa to Ms Bellamy on the grounds that she failed to meet the character test under s501 of the Act. The delegate also refused to exercise the discretion that applied under that section in favour of Ms Bellamy (T1).
LEGISLATIVE AND POLICY PROVISIONS
The legislative and policy provisions which apply to this matter now require consideration. To be granted a subclass 309 spouse visa the applicant must satisfy the relevant public interest criteria including Item 4001 in schedule 4 of the Migration Regulations which requires the Minister to consider whether it is appropriate to exercise his discretion under s501 of the Act to refuse to grant a visa.
Section 501 of the Act provides, so far as is relevant:
(1)       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.
…
(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;
Thus the issue which the Tribunal must determine is whether Ms Bellamy does not satisfy the character test for the purposes of s501(6)(c) of the Act and if the Tribunal is satisfied that Ms Bellamy does not satisfy that test then it may still exercise the discretion it has under s501(1) of the Act not to refuse the granting of the visa. Section 499 of the Act empowers the Minister to give Policy Directions which are binding on the Tribunal for which authority see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction has been given, which is also contained in the T documents, and which I shall refer to from here on as the Policy Direction. The preamble to that Policy Direction sets out its basic purpose which is to regulate in the national interest the coming into and presence in Australia of non-citizens. The preamble also refers to the nature of the character test.
Reference will be made later in this decision to those provisions of the Policy Direction which are directly relevant to the Tribunal's consideration of the present matter but before doing that, the Tribunal turns its attention to the evidence which was presented concerning Ms Bellamy and the application of the character test. It was the general contention of the respondent that Ms Bellamy does not pass the character test pursuant to s501(6)(c)(ii) of the Act on the basis of her past and present general conduct. Paragraph 1.9 of the Policy Direction sets out the following factors concerning the way in which decision-makers should apply the character test under this particular head:
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-citizen's moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white 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;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

Among the matters which, in the absence of any countervailing factors, constitute a failure to pass the character test is a disregard or contempt for the law. As was indicated by the respondent in specific terms in its Statement of Facts and Contentions, those matters include 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, and whether the non-citizen has ever made a false or misleading declaration on an approved form as defined in sub-section 5(1) of the Act about the non-citizen's character or conduct or both. The Policy Direction, in paragraph 1.11 also indicates that general conduct includes recent good conduct.
EVIDENCE
I now turn to the evidence and first to the protection visa application made by Ms Bellamy. The claims that were made by Ms Bellamy at the time of lodging her protection visa application have been already described. In her personal testimony to the Tribunal Ms Bellamy stated that she had come to Australia on her visitor's visa in order to stay with her relatives in this country. Upon her arrival on 13 December 1996 she had gone to live with these relatives. She then said she decided she wished to stay in this country and to work. A cousin then advised her to see Mr Abel Miranda who she believed to be a lawyer who could assist her in staying and working in this country. It was said that Mr Miranda had assisted many Filipino persons in this way and Mr Miranda spoke the Filipino language. As a result of this advice, Ms Bellamy said that in company with her cousin she went to Mr Miranda's office in Castlereagh Street, Sydney and there she was interviewed by Mr Miranda who told her that he could obtain for her a bridging visa which would allow her to stay temporarily and legally in Australia for a period of between one and three years, and also to work. Ms Bellamy said that in the course of this personal interview she was asked about her family background and how long she had stayed in Australia. She said she had no idea about a protection visa - only a bridging visa. She was subsequently asked by Mr Miranda to come back and sign an application form and also to pay him the sum of $1500. When she saw the application form, she saw that it contained handwritten information which was not completed by her but she assumed by Mr Miranda. She just signed the document. She said she told Mr Miranda that "the written testimony was not true" but she thought that he knew the nature of Australian Immigration law and trusted him accordingly. She had no intention to mislead the Commonwealth.
Cross-examined by Ms Maurer, Ms Bellamy said she had felt pressurised by Mr Miranda to sign the document and she had felt similarly pressured to sign the subsequent letter seeking the Ministerial intervention after the refusal of the protection visa application. When asked why she had not gone to the Department to explain her true situation when she realised these false statements had been made, she said that she was quite new in Australia. She did not know she could go to the Immigration authorities and a lawyer was handling her case anyway and he knew what he was doing and he could handle the paperwork.
In addition to Ms Bellamy's own testimony, a number of other witnesses, including her husband, gave personal testimony. They indicated that they believed her to be a person of good character. These witnesses included friends and Mr Bellamy's daughter. The witnesses in general indicated that they were not aware of the details of Ms Bellamy's immigration problems. Mr Bellamy, however, was informed of these details shortly before he married his wife and he agreed in cross-examination that he knew at the time that there was a strong probability that Ms Bellamy would not be allowed to stay in Australia.
CASE LAW AND CHARACTER TEST
Before considering the application of the character test to the evidence that I have already set out, I want to say something about the case law which must guide the Tribunal in this area. The meaning of the term, "good character" as used in s501 of the Act is well understood as a result of several persuasive and for the Tribunal binding decisions of the Full Federal Court (see Minister for Immigration and Ethnic Affairs v Baker 1997 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs 1996 68 FCR 422 (hereinafter Irving) in Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277 (hereinafter Goldie)).

During the course of their submissions, both of the parties made reference to Baker and to Irving. In Irving, the following description is given by Lee J of the term, "good character":
Unless the terms of the Act and Regulations require some other meaning be applied, 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 provided as a fact whilst the latter is a review of subjective public opinion

In Baker, the Full Federal Court said the following about the way in which a person's general conduct should be taken into account when assessing whether or not they were of good character:

We do not think there is any warrant for extracting from the broad word 'general' a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct as we understand the term, displayed but once or twice, may lay character bare very tellingly.

Keeping in mind the legal authorities I have just referred to, the Tribunal is more than satisfied on the evidence which has been reviewed that Ms Bellamy fails to meet the character test. The enduring moral qualities which she has displayed are those of a person of bad character. This display, as illustrated by her objective general conduct, shows her to be a person who is prepared to make false statements in official documents and to mislead and deceive immigration officials in order to gain benefits to which she would not otherwise be entitled in this country.
In his submissions, Mr Mayell contended that the real villain in this case was Mr Miranda, not Ms Bellamy, and that it was Mr Miranda who was a person of bad character as demonstrated by his criminal convictions. It should be noted that those convictions were before the Tribunal in the form of a New South Wales police record (exhibit A4). Mr Mayell also contended that Mr Miranda's bad character was apparent from his willingness to practice as a migration agent when he was not licensed to perform such a function. I note that there was before the Tribunal a certificate from the Migration Agents Registration Authority (exhibit A5) indicating that at no time had Mr Miranda ever been licensed to practice as a migration agent.
In the Tribunal's view, Mr Mayell's contentions miss a crucial point, namely that it is Ms Bellamy's character which is at issue here and not Mr Miranda's. Under the revised provisions of s501 it is for the review applicant to satisfy the Tribunal that the visa applicant, Ms Bellamy, passes the character test. Mr Miranda's alleged conduct in this case, if proven, is obviously reprehensible and criminal but Ms Bellamy was a complicit party to the fraudulent claims made in the protection visa application that she signed shortly after arriving in Australia. She continued to maintain the truth and accuracy of those claims in the subsequent application made to the RRT, and also in the letter sent to the Minister seeking his intervention.
Ms Bellamy asserted she was pressurised to sign the various documents submitted on her behalf. The Tribunal rejects this contention. Ms Bellamy knew the claims she was making were untrue. She was and is a mature woman with a solid educational background and substantial work experience. She was under no obligation to sign any of these documents. Having done so, she must now accept responsibility for the consequences and cannot simply evade that responsibility by asserting that she relied upon her agent.
As Deputy President McDonald said in the recent case of Luong v The Minister for Immigration and Multicultural Affairs 1999 AATA at 625, in paragraph 18:
It is not a satisfactory answer for a visa applicant to tell the Tribunal that he trusted Mr Yuen to answer the questions accurately. If, as in this case, a visa applicant seeks to rely on a friend, migration agent or any other person to assist in the completion of the form then the visa applicant must take responsibility if the form is not accurately completed.
I would also refer to the recent decision of Deputy President McMahon in Dumbrell v Minister for Immigration and Multicultural Affairs 2000 AATA 443 at paragraphs 25-27. In this instance the name of the person who was alleged to have committed the immigration malpractice was a Ms Dalilis and Deputy President McMahon said:
Ms Dalilis engaged in deception not once or twice but on a number of occasions. She knew that facts would be inserted in the protection visa application not because they were true, but because they were intended to be believed and to persuade the delegate to grant her the visa. If she did not see the final version of the facts at that stage, she certainly saw them when she was interviewed by the delegate. She did not seek to correct these facts except in a minor respect. She had another opportunity of telling the truth when the matter went to the Refugee Review Tribunal and again when the Minister's discretion was invoked. On none of these occasions did she seek to expiate her deception. It is not true to say, therefore, that the delegate merely selected an isolated incident.
The applicant then submitted that in fact his wife had made no verbal or written statement which could be defined as "incorrect or false". The incorrect information was provided by Mr Miranda who was described by Mr Dumbrell as the "catalyst for providing this incorrect information". As Mr Miranda was the author of the misleading information he believed that his wife should not bear responsibility.
This is a quite unacceptable submission. Ms Dalilis knew that the deception was intended. Even if she did not know the details of the story to be told at first, she certainly knew the details at a later stage and took no steps to correct them.
The sequence of events which I have set out in the present matter, of course, are very similar to those described in Dumbrell and also I note in passing that there are similar allegations made about Mr Miranda's participation in those events. The situation here was that Ms Bellamy took no steps to correct her false claims at any stage. It was only at the time of her interviews with the respondent's officials in Manila that she first disclosed the truth about her various applications. The Tribunal therefore places little, if any, weight on these disclosures which were no doubt made in order to place her in the most favourable light when seeking to obtain her spouse visa.
The Tribunal also places little weight on the evidence given by Ms Bellamy's character witnesses who were expressing their subjective views about her reputation and qualities. These views were based on a most limited knowledge of Ms Bellamy's immigration malpractice. The Tribunal did not find Ms Bellamy in general to be a credible witness. In particular, given the rapidity with which she sought advice about ways of staying and working in this country following her landing in Australia in mid-December 1996 the Tribunal believes it was most likely her intention to pursue such a course of action prior to that arrival rather than, as she asserted, after discussions with her Australian relatives once she had commenced her visit to this country.
DISCRETION
I turn now to the exercise of the discretion. Having not been satisfied that Ms Bellamy passes the character test, the Tribunal must now determine whether it should still exercise its discretion under s501(1) of the Act not to refuse the grant of a visa. The Policy Direction refers to a number of factors to which decision-makers should have regard when exercising this discretion. This includes three primary considerations as well as a number of other considerations. Of the three primary considerations only two are relevant here - the protection and the expectations of the Australian community. In relation to the protection of the Australian community, the Policy Direction notes, among other things, that 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 the seriousness and nature of the conduct, the likelihood that it will be repeated and whether a visa refusal, in this case, might act as a general deterrent (for which see paragraphs 2.4 and 2.5 of the Policy Direction). The Policy Direction also gives examples of the offences which are considered by the Government to be very serious. They include serious crimes against the Act including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more, and presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia (paragraph 2.6(c)).
The Tribunal has no doubt that the conduct engaged in by Ms Bellamy, as already set out in considerable detail, falls within that described in paragraph 2.6(c) of the Policy Direction even though she was not prosecuted or convicted of any specific crime under the provisions of the Act. In a number of decisions of this Tribunal, over an extended period of time, it has been stressed that it is vitally important that those who deal with officials in migration matters tell the truth, especially where the truth is known only to the person making the statement. Those decisions include Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780; Naidu v Department of Immigration and Ethnic Affairs (AAT 9753; 27 September 1994) and Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997).
In the present case, until her disclosures in Manila, only Ms Bellamy knew the truth, or the lack thereof, of the claims that she had made. Those disclosures were, as I have already indicated, made far too late in the process to be viewed as admissions of wrongdoing based upon a genuine desire to redress the situation. There would seem to be little likelihood that Ms Bellamy would re-offend should she be allowed to enter Australia (paragraph 2.5(b) of the Policy Direction). There is, however, likely to be a strong deterrent message sent through a visa refusal for those contemplating similar fraudulent claims, as has been stressed in recent Tribunal decisions like May v Minister for Immigration and Multicultural Affairs [2000] AATA 480 and Santos v Minister for Immigration and Multicultural Affairs [2000] AATA 567 which Ms Maurer mentioned in the course of her submissions.
In relation to the primary consideration of the expectations of the Australian community, Ms Maurer contended in her submissions that the Australian community would expect Ms Bellamy would not be rewarded for her conduct while in Australia. The Australian community would expect Ms Bellamy to be refused a visa to enter and remain in this country. The Tribunal accepts this contention. Ms Bellamy's false claims have resulted in costly and resource intensive investigations of her eligibility to be granted the status of a refugee. During the time that she was in this country, and following the granting of a bridging visa, she was also able to obtain other benefits, including the right to work, to which she would not otherwise have been entitled. The Australian community would not now expect her to be further rewarded for such actions by granting the visa that she seeks.
Paragraph 2.17 of the Policy Direction sets out a number of other considerations which may be relevant to the exercise of the discretion. They include a genuine marriage to or de facto or independent relationship with an Australian citizen. It was not a matter of dispute between the parties that a genuine relationship exists between Mr and Ms Bellamy. The Tribunal has considerable sympathy for the situation that Mr Bellamy now finds himself in following his marriage to his wife in June 1998. However, as he admitted during the course of his personal testimony, he entered into that marriage with the full knowledge that his chosen partner was afflicted with a serious immigration problem. Despite that knowledge, he proceeded with the marriage on the very eve of Ms Bellamy's departure for the Philippines. As a mature adult, he must now accept the responsibility for and consequences of his own actions.
The Tribunal has no doubt that to preclude the possibility of Ms Bellamy returning to this country by refusing to grant her a visa will cause both Mr Bellamy and his wife significant hardship. Ms Bellamy does, however, have substantial and continuing family connections and ties to the Philippines, including several children who reside in that country. Mr Bellamy has also been able to visit, maintain contact and support his wife during the period that they have remained apart.
As the Policy Direction states in paragraph 2.2, decision makers should note that no individual consideration can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 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. Having regard to all of the evidence that I have reviewed, and conducting this balancing process, the Tribunal is of the firm opinion that in this case the weight of the two relevant primary considerations is much more substantial than that of the other considerations which require analysis. The decision under review is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  6 June 2000, 14 September 2000
Date of Decision  5 September 2000
Counsel for the Applicant        Mr Neil Mayell
Solicitor for the Applicant         Mr Raj Palany
Solicitor for the Respondent    Ms Jodie Maurer