Benson and Minister for Immigration and Multicultural Affairs - [2002] AATA 398

DECISION AND REASONS FOR DECISION [2002] AATA 398

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1847

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FREDERICK ROY BENSON
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon R N J Purvis, QC, Deputy President

Date28 May 2002
PlaceSydney

Decision The decision under review is affirmed.

The Hon R N J Purvis, Q.C Deputy President
CATCHWORDS
Immigration – refusal of combined Class UF Subclass 309 Spouse (Provisional) and a Class BC Subclass 100 Spouse (Migrant) Visa – whether of good character – exercise of discretion – application for Protection visa using false information

Migration Act 1958 – sections 499 (1)(a), 501(1), 501(6)(c)(2), Direction 21

Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCA 583

REASONS FOR DECISION

The Hon R N J Purvis, QC, Deputy President

the application

This is an application made by Mr Frederick Roy Benson ("the Review Applicant") on 30 of November 2001 seeking review by the Administrative Appeals Tribunal ("the Tribunal") of a decision of a delegate of the Minister of Immigration and Multicultural Affairs ("the Respondent") made on 14 November 2001. By such decision the Respondent refused to grant to Ms Maria Anna Liza Benson ("the Visa Applicant") a combined Class UF Subclass 309 Spouse (Provisional) and a Class BC Subclass 100 Spouse (Migrant) Visa for permanent entry into Australia, application for the same having been made by her on 16 October 2001.
In the reasons for the decision, the subject of the application, it was stated (T2):
"…
Assessment - Summary:
I find that the applicant, by pursuing her protection visa application and associated reviews, based on fabricated claims, was successful in her attempt to extend her stay in Australia and to be able to work. I find that she has deliberately engaged a second agent at further cost based on fraudulent grounds solely to prolong her stay in Australia, and again has succeeded in achieving her aims long enough to allow her divorce to go through and to be able to marry the sponsor. I find the applicant sought and gained entitlement under Australia's immigration laws that she otherwise would not be entitled to.
I find that the applicant was not truthful in her dealings with the Department with respect to her stay in Australia and her application for a protection visa and associated reviews and in relation to the class action. I have taken into account that significance resources were deployed to resolve the applicant's status in Australia. I find the applicant's general conduct demonstrates a blatant disregard for Australia's immigration laws and that she was not law abiding nor of good moral character, and this behaviour has continued up until quite recently. I find that the character references provided are in contrast to the actual behaviour of the applicant in relation to the Department and the Australian community and that she does not show any acceptance of responsibility for her actions and places blame on others.
…
finding in the relation to the "character test"
Having regard to the Applicant's past and present general conduct in Australia and based on the evidence before me I find that she is not of good character in relation to that past and present general conduct and as such she fails to satisfy me that she passes the character test.
…
excercise of discretion
Taking into account all of the circumstances, I find that the level and duration of the fraudulent behaviour is not outweighed by the existence of the relationship with the sponsor in this case or any factors effecting the applicant's two children. The applicant has for a lengthy period consistently dealt untruthfully with the Department in a system that requires, and in fact depends on a person to be open and honest so that a proper assessment can be made. I do not elect to exercise my discretion in this case.
…"
The Review Applicant maintained in his application simply that the relevant decision is wrong and a different decision should be made. In a letter accompanying the application he stated however (T1/3) :
"…
My wife was introduced to the migration agent, Mr Richard Barba by her sister-in-law, so my wife put her trust in him, as he was a Filipino as well. This migration agent, Mr Richard Barba, asked my wife to sign blank migration visa application forms and he would complete the forms and process them on her behalf to the immigration department. So my wife naively signed the Immigration Application.
Mr Barba failed to act in a professional and honest manner in his duties as a Migration agent on all accounts. He was not honest in his dealings with my wife, he breached her trust by misleading her with his false information regarding the completion of the first protection visa, he also sought ministerial intervention with the lies about the New People Army in the Philippines etc…
HARDSHIPS, WORRIES & CONCERNS
a.It is very unsettling, stressful and lonely on both families, with one half of the family living in the Philippines, and the other half living in Australia and not being together as a family unit.
b.The cost of this has put us into thousand's of dollar debt, living on one wage is putting us into further debt, and we are living in poverty because of this matter with the immigration department. We were told it would be approximately 6 months wait for the immigration process to be completed, and my wife returned to Australia, it is now close to 12 months and it appears that this will now go on for much longer.
c.As I am a part disabled worker, with a full time job, there is no way I could move to the Philippines and find work. In addition I have a son, who is 21 years old, who has applied to attend University next year, so he will need some help and a roof over his head, I must be responsible to him also.
d.As we are honest people and have a great marriage, we find the statement… as disturbing and discriminatory, that she should be signalled (sic) out as a general deterrent to the Filipino community, that she was involved in a scheme to Migrate to Australia. We assure you this is not the case, there has been an injustice one (sic) to us by no fault of our own by using immigration agents who do not comply to acceptable standards."

the issues

The issues for determination in this application are:

Whether the Tribunal is satisfied that the Visa Applicant passes the character test provided for by section 501(6)(c)(2) of the Migration Act 1958 ("the Act"); and
If the Visa Applicant does not pass the character test whether or not the available discretion should be exercised in her favour.

the hearing

At the hearing of this application the Review Applicant appeared on his own behalf, the Respondent being represented by Mr Murray Allatt, solicitor.
The documents lodged by the Respondent with the Tribunal pursuant to the provisions of section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1-T46 and S1-S9. Written material tendered by the review Applicant was also admitted into evidence and marked accordingly namely:
Exhibit          Description Date
A        Document hand-written by the Review Applicant and attachments
B        Letter from Dr R Orwell      5 March 2002
C        Letter from Dr A Kidman    Undated
D        Letter from Adj. Professor M Burchett     10 April 2002
E        Letter from J Chapman     12 April 2002
F         Letter from Professor D Cheng     24 February 2002
G        Letter from R Buckney       10 April 2002
H        Letter from S Ward 8 February 2002

Transcript of interview of Visa Applicant at the Australian Embassy in Manila        30 August 2001
J         Documents provided by the Visa Applicant     undated
K        Letter from P Irving 1 September 2000
L         Letter from B Creevey        undated

The Review Applicant gave evidence upon which he was cross-examined. The Visa Applicant gave her evidence by telephone connection with the Philippines upon which she was also cross-examined.
relevant legislation and direction
The Act provides that pursuant to section 501(1) 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 ground
…
(6) For the purposes of this section a person does not pass the character test if:
…
(c) Having regard to either or both of 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
…"
It is noted by the Tribunal that the words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". The enduring moral qualities of a person necessitate an objective assessment being made and are to be established as a matter of fact (Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at 431-432). In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 it was stated at 324 that:
"The concept of "good character" in s 501 is not concerned with whether an applicant meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry."
As more particularly relevant to the present application the Tribunal is mindful of a statements made by the Tribunal in reasons for decisions given in other applications and as clearly stated in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155 namely:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently … over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that [the person] is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld."
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 by the Minister pursuant to the provisions of section 499 (1)(a) of the Act.
The relevant direction made under section 499 of the Act is Direction 21 signed by the Minister under date 23 August 2001. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under section 501 of the Act. It is to be given due to consideration (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCA 583).
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).
…
Paragraph 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 relevant circumstances of a particular case, including any evidence of rehabilitation and resent 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.
…
b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefits, 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 consideration
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 the members of 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 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 deterrent).
(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, defacto, 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 the recidivism)
2.10 It is the Government's view that the person's previous general conduct is 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 itself, general deterrence is an importance 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
…
EXPECTATION OF THE AUSTRALIAN COMMUNITY
2.12 The Australian community expects non-citizens to respect and obey Australian laws whilst 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 that Australian community would expect that the person would not be granted a visa or should be removed from Australia.
…
The best interest of the child
2.14 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…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)
…"

chronology of relevant events
Date Description
1946, 9 September 1968, 5 September 1986, 11 September 1986, 19 December 1990, 7 July 1997, 25 July 1997, 2 September 1997, 17 September late 1997 1998, 30 March 1998, 15 April 1998, 21 June 1999, 12 August 1999, 16 August 1999, 29 October 2000, 23 March 2 September 14 September 19 December 21 December 23 December 2001, 16 October 14 November Review Applicant born in Australia Visa Applicant born in Philippines Visa Applicant marries Filipino husband Visa Applicant's daughter Jessica Anna Mari Barazon Lim born Visa Applicant's son Gerard Benedict Barazon Lim born Visa Applicant arrives in Australia on visitors visa Visa Applicant signs Protection Visa application lodged 4 September 1997 Visa Applicant Protection visa application refused Visa Applicant and Review Applicant meet Protection visa refusal affirmed by Refugee Review Tribunal Visa Applicant applies for Ministerial Consideration (section 417) Ministerial Consideration refusal Visa Applicant joins Refugee Class Action Visa Applicant applies for Bridging visa Bridging visa granted Visa Applicant granted in Australia dissolution of her Filipino marriage Visa Applicant and Review Applicant marry Visa and Review Applicants sign and lodge application to migrate to Australia on spouse grounds Visa Applicant withdraws from Refugee Class Action Visa Applicant granted further bridging visa Visa Applicant departs Australia Review and Visa Applicants lodge offshore application for spouse visa Visa Applicant refused visa on character grounds

the factual situation

As above noted in the chronology the Visa Applicant entered Australia on a three-month visitor's visa on 25 July 1997. She had a brother and sister-in-law then living in Australia. Her mother was a visitor at the same time. The Visa Applicant had seemingly at that time separated from her husband in the Philippines.
Prior to the expiration of her visitor's visa and having made a decision that she wanted to stay in Australia and as she put it (Exhibit J) "start a new life after my marriage break up", the Visa Applicant was introduced by her sister-in-law to a Mr Richard Barba, a migration agent having offices in Australia and in the Philippines.

It maybe assumed that Mr Barba had advised the Visa Applicant to make application for a Protection visa as the appropriate form was in due course completed and signed by the Visa Applicant on 2 September 1997. The Visa Applicant says that when she signed the application form at the request of Mr Barba it was blank and that the information set for in it when lodged with the Respondent was all inserted by Mr Barba. It was false.
It is apparent from the application form (T3) - the form used by an Applicant who wishes to submit her own claim to be a refugee - that much personal information was provided to Mr Barba by the Visa Applicant. Her family details were set forth as to schooling and past employment. Her address for correspondence to do with the application was noted as at Erskine Park where she was then living.
In answer to the question why she left the Philippines the following appeared (T3/29-30):
"I fear for my life and to avoid being killed by the NPA", and as to what she feared may happen if she went back: " I would be killed by the New Peoples Army. They were after my head."
When asked why she would be harmed or mistreated if she did return to the Philippines it was stated in the application (T3/31-32):
"While I was employed by Meycamayan Service station at Mey Cauayan Bulacan on 16 of April 1997, three unidentified persons entered the gas station at around 10.30 p.m. They introduced themselves as NPA collectors/solicitors of contribution to the NPA cause. Only me and gasoline attendant were at work. They were looking for the owner and I told them that he is not around. He comes only during the day.
They told me that they will come back on the 23 April 1997, which they did. They were the same persons who came before on the 16 April 1997. Unfortunately the owner of the garage station was not there again and they told that they will be coming back and warned me not to report this matter to the Police Authorities.
On May 2 1997 they came back around eight of armed men came at 9 p.m. and ransacked the gas station of all useful things, tied my hands and put a plaster on my wife and did the same to the two service attendants. They warned us not to say anything to the police and if we did we will be killed. We were investigated by the authorities and told them everything. The following week we had a note under the door that they are going to kill me.
The Philippine Authorities are promising protection to us being endangered of being killed by the NPA.
But they can not protect us for 24 hours of the day seven days a week.
I never worked again at night and because of the danger I was forced to resign the first week of June 1997.
In the province of Bulacan there were so many people killed and missing, some of them are picked up from their house and never come back.
So my family decided that I had to leave my country to save my life."
The Respondent, by letter forwarded to the Visa Applicant at her home address, acknowledged receipt of the application for a Protection Visa on 5 September 1997. The letter made mention of the possibility of an interview been necessary "to seek further information" and of all future correspondence being sent to the address at Erskine Park. There was provision for her to give the name and address of a migration agent if the latter charged her for advice. Mr Barba did charge the Visa Applicant for advice. There is not any evidence of his name and address being given to the Respondent.
By letter dated 17 September 1997 addressed to the Visa Applicant at her Erskine Park address, the Respondent refused the application for a visa. The Visa Applicant said in her evidence that she was advised by Mr Barba to appeal the decision to the Refugee Review Tribunal and that "he would do all. I did not have to do anything." An application for Review was signed by the Visa Applicant. The reasons for making the application were stated as:
" The original decision-maker did not take into consideration the actual situation in the community where I lived. He just depended on press reports which are always favourable to the government of president Ramos."
Again the address of the Visa Applicant for service was given as at Erskine Park. By letter under date 16 October 1997 (S3) the Visa Applicant was informed at that address of the receipt of the application. On the 24 March 1998 (S4) the Visa Applicant was notified of the need of the Refugee Review Tribunal to receive oral evidence from her in aid of her application. She was given a time and place for the hearing. The Visa Applicant signed a Response to Hearing Offer form under date of 26 March 1998 indicating that she did not want to attend the hearing. On the 30 March 1998 the Refugee Review Tribunal affirmed the decision not to grant her a Protection Visa.
On 15 April 1998 Mr Barba wrote to the Minister pursuant to section 417 of the Act. A decision not to exercise the power in favour of the Visa Applicant was made by the Minister on 21 June 1998. By force of the Act the Visa Applicant thereafter become an illegal entrant.
The Visa Applicant met the Review Applicant in late 1997. From about 5 September 1998 they began to spend time together. They were engaged on 26 September 1999 and following the dissolution of the Visa Applicant's first marriage on 23 March 2000 they were married on 2 September 2000.
Shortly prior to the engagement the Visa Applicant with the Review Applicant "obtained the documents" from Mr Barba. The Review Applicant said in his evidence that he arranged for the Visa Applicant to see a firm of solicitors so as "to get her a short time in Australia in order to marry". The Visa Applicant said that having obtained the documents from Mr Barba she "read them for the first time" and then took them to the solicitor. The solicitor, she said, read them and then asked her if any of the claims as to her fear for her life and the associated events were true. She says that she told him they were not true.
The solicitor advised that, on the basis of the allegations contained in her Protection Visa application, she should become party to a Class Action then pending in the High Court. The Visa Applicant says that this advice was given even though the solicitor had been told by her that the claims in the Protection Visa application were false. The Visa Applicant was joined as a party on 12 August 1999, following which she applied for a Bridging Visa, the same being granted on 29 October 1999. She withdrew from the Class Action four days prior to her leaving Australia on 23 December 2000.
The Visa Applicant admits to knowing the falsity of the claims at the time she saw the solicitor. She says she so told the solicitor and yet both she and the solicitor proceeded with the application to join the Class Action. The solicitor was not called to give evidence. The Tribunal finds it to be inconceivable that a legal practitioner would proceed to act on the basis of material known to the solicitor to be false. It is much more likely and the Tribunal so finds that the Visa Applicant did not, nor did the Review Applicant, tell the solicitor of the falsity.
The Visa Applicant maintained in her evidence before the Tribunal that she did not remember receiving any correspondence from the Respondent or the Refugee Review Tribunal even be it that only her address appeared in the various applications. She also claimed that she "had no knowledge of the matter set forth in the Protection Visa until she obtained her papers from Mr Barba". She said she was paying Mr Barba "money but I did not know what it was for."
The Visa Applicant is and was at all relevant times fluent in English. She was with her relatives when she first met Mr Barba and gave him instructions. Mr Barba was known to her sister-in-law and probably to other members of the Philippine community in Australia. The Visa Applicant provided Mr Barba with extensive personal details. It is highly unlikely that the Visa Applicant was unaware at the time of the allegations and false statements contained in her application. If she had been genuine in her protestations she would have sought to persuade the Refugee Review Tribunal by giving oral evidence supportive of her contentions.
Not only is the Tribunal satisfied that the Visa Applicant, and probably the Review Applicant, was aware of the falsity of the allegations when she sought to, and obtained leave to the Class Action but it is also satisfied that the Visa Applicant whilst not herself writing out the allegations was aware of the situation that was presented by her in her various applications being false.
The Visa Applicant intended to enter Australia and "start a new life after my marriage break up." She intended to obtain employment and remit money to the Philippines. Her main "interest was to stay and work". She was prepared to use such means as were available to achieve her ends, the same including the making of false representations to the Respondent and his representatives as well as the Refugee Review Tribunal all in aid of remaining in Australia.
The Review Applicant was aware of the falsity of the allegations or sought to remain ignorant of whether the picture portrayed in the documents obtained from Mr Barba was true or false at least by 12 August 1999 and prior to the engagement. He was a party to the false representations being put before the solicitor and they being acted upon.
character of the visa applicant
Assessment of the character of the Visa Applicant is to be made having in mind the prerequisites earlier mentioned in these reasons. It is to be an objective assessment.
There has been tendered before the Tribunal a number of testimonies as to the character of the Visa Applicant. They bear witness to her way of life, her religious affiliation, her family, her friends and her education. She is said to be highly regarded by friends and associates.
But even up till recent time, maintaining her participation in the Class Action, she sought to obtain migration benefits by use of representations knowing by her to be false. As to some, she adhered regardless whether they were true or false. The Tribunal is satisfied that the Visa Applicant even at the hearing was not truthful. It does not accept her inability to remember events. It does not accept her denial of receiving correspondence. It does not accept her lack of awareness of the falsity of the material contained in her application.
The evidence of friends and acquaintances does not reveal their being aware of the nature of the Visa Applicant's false representations. Their testimony is given without knowledge of the gravity of the migration misconduct engaged in by the Visa Applicant.
The Tribunal is satisfied that having in mind the past and present general conduct of the Visa Applicant that she is not a person of good character.
protection of australian community
It was submitted on behalf on the Respondent that breaches of the immigration law prima facie constitute a failure to pass the character test within the meaning of section 501(1) of the Act. In addition the Minister's Direction 21 stipulates that such conduct is considered to be very serious and that false protection visa claims and false applications seeking ministerial intervention are likewise to be seen as extremely serious.
It was further submitted that by reason the Applicant making false claims and submitting bogus applications, departmental resources had been wasted and delays caused to the consideration of applications that were genuine and with merit. Whilst it maybe inferred by the Tribunal that this could be so it is desirable and maybe necessary for evidentiary material to be placed before it in order for a definitive finding in this regard to be made.
The Tribunal accepts the submissions made on behalf of the Respondent as to the seriousness of the conduct in which the Visa Applicant engaged. The making of false and misleading statements in connection with entering or stay in Australia may well constitute a serious offence carrying with it penal sanctions under the Act.
deterrence
In order for the Respondent to effectively process applications for the grant of a visa, it is necessary for Applicants to be truthful and honest. As has been set forth earlier in these reasons it is for an Applicant to detail the factual basis upon which the application is made. The true facts are within the knowledge of the Applicant and it should not have to be for the representatives of the Respondent to elicit the same. If this Visa Applicant should not be granted the visa sought by her, after persons applying for a visa may well be deterred from seeking to gain entry or obtain residence in Australia by the making of false protection visa applications because of misleading information.
But more. In the present case the Visa Applicant was introduced by her sister-in-law to a Mr Barba, the migration agent. It is more likely then not Mr Barba was well known to members of the Philippine community in Australia. Refusal of the visa in the circumstances of this matter by well deter others seeking to use a like strategy in order to obtain migration benefits.
recidivism
The evidence before the Tribunal establishes that the Visa Applicant engaged in her misleading conduct over a number of years. Whilst it may be unlikely that she would seek to obtain the same end again by the same means, the possibility that she would engage in conduct falsely declaring matters the same thought to be advantageous to her can not be lightly disregarded.
expectation of the australian community
As has been often said, the Australian community expects non-citizens to obey Australian laws while in Australia. A person who has sought to obtain for herself a benefit by the use of false and misleading information should not nevertheless be permitted to obtain the benefit of a visa possibly leading to permanent residency, even be it she is married to an Australian citizen.
children
The Visa Applicant has two children living in the Philippines. Neither of the children has visited Australia. The children's father resides in the Philippines. In the event of the application being refused the children will remain living in the Philippines and probably with their mother. There is not any evidence of their suffering a hardship other than they not being able to enter Australia and live with the Review Applicant.
The Review Applicant has two children, at least one of whom is over the age of 18 years. There is not any evidence before the Tribunal as to these children being adversely affected by the Visa Applicant not being able to enter Australia other than by reason of the absence of her company.
other factors
Evidence tendered before the Tribunal speaks of the employment activities of the Review Applicant at the University of Technology, Sydney and his general character as known to his friends and university acquaintances. The evidence is persuasive in establishing the Review Applicant as a trustworthy employee, a good friend and an asset to his church and community. There is no issue raised as to the sincerity of his marriage.
However on the basis of the evidence before the Tribunal, the Tribunal is satisfied that he was aware of the immigration status of the Visa Applicant prior to the engagement and he was aware or chose not to become aware of the false representations made by the Visa Applicant in support of her application to be joined as a party in the Class Action.
Hardship will undoubtedly be suffered by the Review Applicant in the event of the Visa Applicant not been able to obtain the visa. This position is to be taken into consideration along with the other relevant factors.
There is not any evidence of refusal of a visa causing undue hardship to relatives of the Visa Applicant residing in Australia.
decision
The Tribunal is satisfied that the Visa Applicant is a person not of good character within the meaning of the Act. This being so, it is for the Tribunal to be mindful of the various factors to be taken into consideration in the exercise of its discretion. It is to take into consideration the matters set forth in Direction 21 of the Minister.
The Tribunal is satisfied that the adverse conduct of and disregard of the truth by the Visa Applicant was very serious. The Visa Applicant was aware that a Protection visa was being sought for her by use of false information. Even be it the Visa Applicant was not aware of the severe nature of the false allegations made in her application (which awareness the Tribunal finds to have existed), she was aware that Mr Barba was manufacturing a false factual situation in aid of a visa being obtained. Assuming further the latter to have been so, the Visa Applicant was prepared to allow a migration agent to place a false factual situation before the Respondent. In either event the culpability of the Visa Applicant would be much the same. The Australian community would seek protection from a person and that person's associates who participated in such deceitful and misleading conduct. The community would seek to have the Tribunal make a decision, which might deter others from engaging in the same or similar conduct.
The community is entitled to expect compliance by non-citizens and non-residents with Australian laws and in the event of there not having been compliance, a relevant person should not be granted the benefit of a visa.
The evidence before the Tribunal is not such as to indicate that the best interests of the relevant children would be significantly affected in an adverse way by the Visa Applicant not being granted a visa.
The matters of primary consideration earlier set forth and the decisions in respect of them outweigh the recognised hardship, which will be experienced by Mr Benson.
For the reasons herein before set forth the Tribunal is of the opinion that the decision under review should be affirmed. Accordingly the decision under review is affirmed.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, QC, Deputy President
Signed: M. Dunkel-Quiros           .....................................................................................
  Associate
Date/s of Hearing  18 and 19 April 2002
Date of Decision  28 May 2002
Representative for the Applicant   self-represented
Solicitor for the Respondent  Mr Murray Allatt