Cafarella and Minister for Immigration and Multicultural Affairs
[2001] AATA 30
•22 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 30
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/178
GENERAL ADMINISTRATIVE DIVISION )
Re JOSEPH CAFARELLA
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date22 January 2001
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that the visa application not be refused under section 501 of the Migration Act 1958.
.............[sgd J Block]....................
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – sponsor – character test – protection of the Australian community – expectations of the Australian community – best interests of a child – level of risk to community – seriousness and nature of conduct – risk of recidivism – whether visa refusal may prevent or discourage similar conduct – fraudulently obtained passport – false information on visa application – obtaining employment without permission
Administrative Appeals Tribunal Act 1975 – section 42D
Migration Act 1958 – sections 234, 235, 417, 499, 501
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956
Re Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575
Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023
Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967
REASONS FOR DECISION
22 January 2001 Deputy President J Block
(a) This is an application for the review of a decision of the Respondent made on 15 January 2000, refusing an application for a spouse visa by Mrs Wendy Samira Cafarella ("Mrs Cafarella") and in respect of whom the Applicant, her husband, was the sponsor.
(b) The Applicant was represented by Mr William Carney of Counsel instructed by M J Woods and Co solicitors, while the Respondent was represented by Ms Adele Connor of the Australian Government Solicitor.
(c) The Tribunal had before it T Documents and also Supplementary T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") together with exhibits as follows:
Exhibit A1 Statement dated January 2001 by Melchora Pielago, the aunt of Mrs Cafarella;
Exhibit A2 Statement dated 2 February 2000 by Mrs Carmela Cafarella, the mother of the Applicant;
Exhibit A3 Another statement dated 27 August 2000 by Mrs Carmela Cafarella;
Exhibit A4 Affidavit of explanation dated 3 December 2000 by Mrs Cafarella;
Exhibit A5 Certificate (undated) by R. C. P. Commercial and Industrial Co ("RCP");
Exhibit A6 Statutory Declaration dated 15 December 2000 by the Applicant;
Exhibit A7 Four medical certificates, three dated (11 February 2000,10 March 2000 and 24 March 2000 respectively) and one undated, by Dr Alice Chmielowska, a medical practitioner of Leichhardt;
Exhibit A8 Letter from V. B. Immigration Services addressed to the Australian Government Solicitor dated 16 May 2000, enclosing a number of documents and including certificates of recommendation by various persons in Batangas in the Philippines, and including the municipal mayor of Taysan, the school principal of Our Lady of Mercy Academy and a Police Inspector;
Exhibit R1 A Chronology of events prepared by the Respondent dated 21 December 2000.
The Supplementary T Documents were not numbered sequentially after the T Documents and commenced with page 1. Accordingly, for this reason, page references in these Reasons when preceded by "T" refer to the T Documents, but not the Supplementary T Documents.
(d) In the T Documents and also the Supplementary T Documents, the party cited as the Respondent was the Department of Immigration and Multicultural Affairs. Since the relevant decision was made by a delegate of the Respondent Minister, he is cited in these Reasons as the Respondent.
(e) Mrs Cafarella gave evidence by telephone link from the Philippines. Her evidence took up much of the first hearing day (8 January 2001) and also a part of the second hearing day (9 January 2001). She was assisted on each of these days by an interpreter (but not the same interpreter) in the Tagalog (Filipino) language. Her need for such assistance was in fact minimal; it was clear that in fact Mrs Cafarella is fluent in English. Except on a very few occasions, the services of the interpreter proved to be unnecessary. (Mrs Cafarella attended a school where the medium of instruction was both English and Tagalog and, after school, attended radiography and midwifery courses, which were instructed entirely in English)
(f) I note as a preliminary matter that the decision under review was given on 15 January 2000. Thereafter, in August 2000, there were two particularly relevant developments; namely the birth on 11 August 2000 of Natasha Cafarella ("Natasha"), the daughter of the Applicant and Mrs Cafarella, and the marriage of the Applicant and Mrs Cafarella on 10 August 2000 (ie. the preceding day). It was for these reasons that, as a preliminary matter, the possibility of referring the decision back to the Respondent for reconsideration in the light of these developments was canvassed. I indicated, though, that I would utilise the powers conferred under section 42D of the AAT Act only if only if both parties agreed. In fact, Ms Connor was prepared to agree but the Applicant was not, and in these circumstances the matter proceeded to a hearing.
(a) Exhibit R1 is a chronology of events ("the Chronology") prepared by Ms Connor. It sets the scene so admirably that it is reproduced in full in these reasons as follows:
14 November 1972 Wendy Semira, the visa applicant, is born in Taysan, Batangas Province in the Philippines (T7 p119, T8 p136 & 21 p235)
5 June 1974 Joseph Cafarella, the applicant is born in Sydney, Australia (T21 p227 & 236)
2 July 1997 Visa applicant makes an application for a tourist/visitors visa to travel to Australia and submitted a false "Certification" of RCP Commercial & Industrial Co. dated 18 July 1997 as to her employment in support of this application (T 7 pp 119-134)
24 July 1997 Visa applicant is granted a visitors visa valid for one month from the date of arrival (T8 p p162)
9 August 1997 Visa applicant arrives in Australia on visitors visa valid for one month until 9 September 1997 (T8 p162 & T10 p167)
5 September 1997 Visa applicant applied for a protection visa and associated Bridging visa (T8 pp135-163)
11 September 1997 Visa applicant's migration agent requested access to Medicare and a tax file number (T9 pp164-166)
8 September 1997 DIMA wrote to the visa applicant acknowledging receipt of the protection visa application (T11 pp169-170)
19 September 1997 DIMA decision to refuse protection visa application (T12 pp173-181)
20 October 1997 Visa applicant lodged an application for review with the Refugee Review Tribunal ("RRT") (T13 p184)
January 1998 RRT wrote to the visa applicant and offered a hearing scheduled for 17 February 1998 (T13 p186)
26 February 1998 RRT decision not to grant a protection visa to the visa applicant (T13 pp183-189)
27 February 1998 Visa applicant was advised of the RRT refusal of her protection visa application (T15 p191)
12 March 1998 A delegate of DlMA made an assessment that the applicant's case did not satisfy the requirements for the exercise of the Minister for Immigration and Multicultural Affairs ("the Minister") discretion under section 417 of the Migration Act 1958 ("the Act") (T14 p190)
27 March 1998 The visa applicant's migration agent, Clara Suasin, wrote a letter to the Minister requesting Ministerial intervention on humanitarian grounds under section 417 of the Act (T15 p191).
28 March 1998 Visa applicant becomes an unlawful non-citizen (T21 p234)
7 April 1998 The Minister wrote to the visa applicant's migration agent in relation to the section 417 application (T16 p192)
24 August 1998 The Minister made a decision not to exercise his discretion under section 417 of the Act (T17 p193)
2 September 1998 DIMA wrote to the visa applicant's migration agent advising that the visa applicant's application under section 417 had been unsuccessful and requesting that the visa applicant contact the nearest regional office of DIMA (T17 p193)
20 June 1999 Visa applicant makes an application for a Bridging Visa E to gain permission to depart from Australia on 18 July 1999 (T18 p194)
13 July 1999 DIMA grant visa application a Bridging Visa E from 13 July 1999 until 18 July 1999 on condition that the visa applicant depart from Australia on or before that date (T19 & 20 pp198- 201)
18 July 1999 Visa applicant departs from Australia (T18 p196, T27 p452 & T29 p459)
28 July 1999 An application for a subclass 309 Prospective Spouse visa lodged in Manila the Philippines by the visa applicant together with sponsorship application form completed by the applicant and supporting documentation (T21 pp202-402)
2 August 1999 Visa applicant's migration agent write to Australian Embassy Manila enclosing Australian Federal Police Certificate dated 14 July 1999 (T22 pp402-3)
22 November 1999 Australian Embassy wrote to the visa applicant in relation to the character criterion of her application for a spouse visa and inviting her comment (T24 p405)
29 November 1999 Letter from visa applicant's migration agent addressing character criterion (T25 p408)
1 December 1999 Visa applicant wrote a letter to Australian Embassy addressing the character criterion and submitted a further false "Certification" of RCP Commercial & Industrial Co. dated 1 December 1999 as to her employment with that organisation (T26 pp409-411)
30 July 1999 The visa applicant was interviewed by a delegate of the DIMA at the Australian Embassy at Manila in relation to her visitors visa, the protection visa and her relationship with the applicant (T28 pp457-8)
15 January 2000 A delegate of the DIMA made a decision to refuse to grant a subclass 309 visa on character grounds (T1 pp5-15).
8 March 2000 The section 37 Statement of Reasons is prepared by the DlMA delegate decision maker (Supplementary T-documents pp1-8)
10 August 2000 The visa applicant and the applicant were married in the Philippines.
11 August 2000 Natasha Cafarella, the visa applicant and applicant's daughter was born in the Philippines.
(b) I next set out, again by way of background, the whole of the Respondent's Statement of Facts and Contentions dated 22 December 2000:
FACTS
1.The visa applicant, Wendy Semira Cafarella, is a citizen of the Philippines. She arrived in Australia on 9 August 1997 on a visitors visa valid for one month until 9 September 1997 (T documents 8 at page 162 ['T8 p 162']).
2.On 5 September 1997, the visa applicant lodged an application for a protection visa (T8 pp 135-163). She also made an application for an associated Bridging Visa with work rights which was granted on the same day.
3.On 19 September 1997, a delegate of the Minister ('delegate') made a decision to refuse to grant a protection visa to the visa applicant (T12 pp173-181).
4.On 20 October 1997, the visa applicant lodged an application for review of the delegate's decision to the Refugee Review Tribunal ('RRT') (T13 p184).
5.In January 1998, the RRT wrote to the visa applicant and offered an oral hearing scheduled on 17 February 1998 (T13 p186).
6.On 26 February 1998, the RRT affirmed the delegate's decision not to grant a protection visa (T13 pp183-189).
7.On 27 March 1998, the visa applicant's migration agent wrote to the Minister for Immigration and Multicultural Affairs ('the Minister') and made a request on the visa applicant's behalf for humanitarian consideration under section 417 of the Migration Act 1958 (Cth) ('the Act') (T15 p191).
8.On 24 August 1998, the Minister declined to exercise his discretion in respect of the visa applicant's request for humanitarian consideration under section 417 of the Act (T17 p193).
9.On 2 September 1998, the Department of Immigration and Multicultural Affairs ('the respondent') wrote to the visa applicant's migration agent advising that the visa applicant's application under section 417 of the Act had been unsuccessful and requested that the visa applicant contact the nearest regional office of the respondent (T17p193).
10.On 20 June 1999, the visa applicant made an application for a Bridging Visa E seeking permission from the respondent to depart from Australia on 18 July 1999 (T18 p194). This bridging visa was granted on 13 July 1999 on condition that the visa applicant depart Australia by 18 July 1999 (T19 & 20 pp198-201).
11.0n 18 July 1999, the visa applicant departed from Australia (T18 p196, T27 p452 & T20 p459).
12.On 28 July 1999, an application for a subclass 309 visa and supporting sponsorship application were lodged on behalf of the visa applicant, on the basis of her spousal relationship with the applicant, who is an Australian citizen (T21 pp202-402).
13.On 22 November 1999, the respondent wrote to the visa applicant in relation to the character criterion of the application for a subclass 309 visa and inviting her comment (T24 p405).
14.On 1 December 1999, the visa applicant wrote to the respondent in response to the letter of 22 November 1999 in relation to the character criterion (T26 pp409-410).
15.The visa applicant was interviewed by a delegate at the Australian Embassy in Manila on 30 July 1999 (T28 pp457-8). In respect of her application for a visitors visa, the visa applicant indicated the following:
-she engaged an agent named 'Mercy' who was introduced to her by a friend and paid P26,000 for the visa;
- the purpose of going to Australia was to visit her aunt who gave birth.
In respect of her application for a protection visa, the visa applicant indicated the following:-once she got here (Australia) she decided to apply for a protection visa to be able to work as she is one of the bread winners in the family and she saw employment prospects in Australia as good;
-she applied for the protection visa because she decided to stay and work here;
-her Aunty informed her about the protection visa and introduced her to Clara Suasin (migration agent). She paid her A$1,000 initially and then another A$280;
- 'the solicitor' made up the story but some of the information is true;
- she signed the form and knows everything in it.
In respect of her request for Ministerial intervention under section 417 of the Act, the visa applicant indicated the following:-the application was refused on 7 September 1998. She intended to apply for review and contacted Belen Oag but did not push though.
16.On 15 January 2000, the delegate made a decision to refuse to grant a subclass 309 visa. The delegate determined that the visa applicant was not of good character with regard to her past and present general conduct, within the meaning of the legislation; and that the application should be refused (T1 pp6-14).
17.On 10 August 2000, the visa applicant and the applicant were married in the Philippines.
18.On 11 August 2000, the visa applicant and applicant's child, Natasha Cafarella, was born in the Philippines.
ISSUES:
19.In the respondent's view, the issues to be determined are as follows:
whether the visa applicant passes the character test within the meaning of section 501 of the Act; and if not
(ii) whether the Tribunal should exercise its discretion to refuse to grant the application.
RELEVANT LEGISLATION:
20.Section 501(1) of the Act confers a power on the Minister, at his discretion, to refuse to grant a visa if the person does not satisfy the Minister that the person passes the character test.
21.Section 501 in its present form is a result of the amendments introduced into the Act by the Migration Legislation Amendment (Strengthening of Provision relating to Character and Conduct) Act 1998, No 114, with effect from 1 June 1999. Item 28 of Schedule 1 of the amending Act provides that the new legislative regime applies to applications made but not determined before the commencement date. Accordingly, the procedural requirements of the amending Act have application in the present circumstances.
Section 501(6):
22.A person does not pass the character test if:
(c) having regard to:
(i) ……………..
(ii) the person's past and present general conduct
the person is not of good character
Direction No 17:
23.This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act. The Direction is binding to all decision makers: Rokobatini v MIMA (1999) 90 FCR 583 (FC) at [17] per Whitlam and Gyles JJ .
24.The Direction consists of two parts. Part 1 provides directions on application of the character test. If a person does not pass the character test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them.
Part 1 of the Direction: Application of the 'character test'
25.In respect of s 501(6)(c) of the Act, the Direction provides that the decision-maker must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
Section 501(6)(c)(ii): past and present general conduct:
26.Paragraph 1.9 of the Direction provides, in respect of this subsection, that any good acts of the non-citizen after reprehensible conduct are indications of 'character reform'. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character.
27.The Direction provides that the decision-maker should consider the following matters which will, 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 benefit, provided a bogus document or made a false or misleading statement; and
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, pursuant to the legislation, about the non-citizen's character or conduct or both.Part 2 of the Direction: Primary considerations in exercising the discretion, if a person does not pass the character test
28.Pursuant to the Direction, where the decision maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened. Evidence of good acts and recent conduct is also relevant to the exercise of the discretion.
29.Paragraph 2.3 of the Direction provides that, in exercising the discretion, decision-makers must have regard to the following primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) the best interests of the child in respect of a parental relationship between that child and the person under consideration.
(a) The protection and expectations of the Australian community:
30.Pursuant to paragraph 2.5 of the Direction, factors relevant to an assessment of the level of risk to the community include:
(a) the seriousness and nature of the conduct of the applicant;
(b ) the likelihood that the conduct may be repeated (including any risk of recidivism);
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
- The seriousness and nature of the conduct:
31.Pursuant to paragraph 2.6(c) of the Direction, the following is considered to be very serious:
- serious crimes against the Act including presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.
General deterrence:
32.Pursuant to paragraph 2.11 of the Direction, general deterrence is an important factor in determining whether to refuse or cancel a visa. Relevant considerations include the nature of the offence or scheme and whether visa refusal will discourage or prevent others from engaging in similar activities.
(b) The expectations of the Australian Community
33.Pursuant to paragraph 2.12 of the Direction, the Australian community expects non-citizens to obey Australian laws while in Australia. Visa refusal may be appropriate simply because the nature of the character concerns are such that the Australian community would expect that the person would not be granted a visa.
Other considerations
34.Pursuant to paragraph 2.17 of the Direction, other matters, although not primary considerations, may be relevant. They should be taken into account, but given less individual weight than the primary considerations. The relevant considerations, in relation to this application, include:
- In a genuine marriage to 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 partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship; and
·the degree of hardship which would be caused to the immediate family members lawfully resident in Australia.
CONTENTIONS:
·The character test and the applicant's past and general conduct in Australia:
35.The visa applicant entered Australia on 2 July 1997 on a visitors visa which was applied for on the basis of false information, namely that she had been for a three year period prior to making the application and continued to be an executive secretary who was taking one months leave to enter Australia as a tourist for that defined period only. The visa applicant had not in fact been working in this capacity for the period stated on the application form signed by her on 2 July 1997. Further, she submitted with this application form a document dated 18 July 1997 entitled "Certification" of R.C.P Commercial & Industrial Co. (T7 p124) which she was aware contained false information. The respondent contends that her motivation for doing so was to procure her entry into Australia by dishonest means. The respondent contends that her willingness to make such an application shows a clear disregard by the visa applicant of Australia's migration laws & is indicative of bad character.
36.The visa applicant made false and misleading statements in respect of the following:
·application for a protection visa, lodged 5 September 1997;
·application to the RRT for review of the respondent's decision, lodged 20 October 1997; and
·request for humanitarian consideration under section 417 of the Act.
37.At interview, the visa applicant indicated that she came to Australia to visit her aunt but in her protection visa application, the visa applicant stated that she "left the Philippines because she was in fear of her life". In a signed statement in support of the protection visa application, the visa applicant further described how she had been discriminated against, threatened, harassed, detained and physically harmed by the recruitment agencies who employ Filippinos abroad on account of her activities in attempting to warn others about the agencies' oppressive employment practices (T8 p152). The visa applicant admitted at interview that her migration agent had made up the story for the protection visa application. The respondent contends that this in no way diminishes her personal culpability. The visa applicant stated that some of the information (in the protection visa application) was true (T28 p457) but the respondent contends that this does not in any way mitigate the visa applicant's dishonest conduct, particularly as she also admitted at interview that she signed the application form (T8 p159) and knew "everything (stated) in it" (T28 p457). The visa applicant also admitted that she made the protection visa application because she had decided to stay (in Australia) and work as she was one of the breadwinners of the family and saw the employment prospects in Australia as good (T28 p458). The respondent contends that the visa applicant knowingly submitted fraudulent applications up to and including a request for Ministerial intervention under section 417 of the Act. The respondent contends that the visa applicant's past fraudulent conduct is indicative of bad character.
38.The visa applicant had opportunities to retract the story and to give a true account, not only when she made her initial application for a protection visa, but in her subsequent applications for review of the relevant decision. In Manlangit v MIMA (unreported AAT No: N99/1519, 22 May 2000), D.P McMahon stated at para. 17:
"[The applicant] did not take advantage of any of these opportunities. One can only conclude that she knowingly broke the immigration law in an endeavour to obtain permission to stay in this country longer". (my emphasis)
39.The visa applicant's past bad conduct is not outweighed by any recent 'good conduct'. The respondent contends that the visa applicant's departure from Australia following the Minister's refusal to exercise his discretion is not indicative of recent 'good conduct'. Having failed in the protection visa application, her departure from Australia and subsequent application for a subclass 309 visa, was mereIy the next step in the visa applicant's intention to prolong her stay in Australia. In Haines v MIMA [2000] AATA 575, D.P McMahon stated at paragraph 28:
"The fact that [the applicant] returned to Manila in order to make her spouse visa application does not bring credit on her…. She had no alternative. She had no lawful reason for staying in this country. lf she wished to make a visa application she could not have done so without leaving the country"
40.The respondent thus contends that the visa applicant is not of 'good character' within the meaning of section 501 (6)(c)(ii) of the Act.
·The Tribunal's discretion pursuant to section 501(1} of the Act and Part 2 of the Direction:
Protection of the Australian community:
41.The fraud committed by the visa applicant in respect of her applications to the respondent: in relation to the visitors visa, the protection visa, to the RRT and finally to the Minister for humanitarian consideration, amounts to 'very serious' conduct within the meaning of the Direction. This degree of seriousness must be taken into account when considering the protection of the Australian community.
42.The respondent contends that refusal of the visa applicant's protection visa application will deter others from committing similar offences: Haines v MIMA, [2000] AATA 575 per McMahon DP at paragraph 28; Santos v MIMA (unreported, AAT No: N1999/1570) per Chappell DP at paragraph 71; Sarenas-Sy v MIMA (unreported, AAT No; N2000/286) per Chappell DP at paragraph 52.
Expectations of the Australian community:
43.The respondent contends that the visa applicant has shown complete disregard for Australia's migration laws. The community's expectation is that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled: Haines v MIMA [2000] AATA 575 per McMahon DP at paragraph 26; Esguerra v MIMA [2000] AATA 554 per McMahon DP at paragraph 27; Gaculais v MIMA (unreported, AAT No. N2000/375) per Chappell DP at paragraph 59; Sarenas-Sy v MIMA (unreported, AAT No. N2000/286) per Chappell DP at paragraph 53. In May v MIMA [2000] AATA 480, D.P Chappell stated at paragraph 84:
"The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country'.
Hardship
44.The third primary consideration is the best interests of the child. While the respondent concedes that the child's interests may be best served if the child remains with its parents and the family unit remain intact, this would nevertheless be achievable if the application under review be affirmed in these proceedings. The applicant is entitled to make an application to migrate to the Philippines in order that he be able to reside with the visa applicant and his daughter, who has lived in the Philippines for her entire life to date. There is material before the Tribunal attesting to the close relationship which has developed between the applicant and the visa applicant's family in the Philippines. The respondent submits that the visa applicant's daughter has no ties with Australia never having lived here with her parents.
45.The respondent concedes that there may be 'disruption' in the relationship between the visa applicant and her husband if the visa application is refused. However the evidence before the Tribunal as to this hardship is founded on speculation about what life in the Philippines would be like for him, for example in relation to work opportunities. Further, any hardship to the applicant should be discounted on the basis that at the time of his decision to marry in May 1999, he was aware that the visa applicant was only entitled to remain in Australia on a temporary rather than a permanent basis. By the time of his marriage to the visa applicant on 10 August 2000, he was aware that the visa applicant may not be entitled to return to Australia on a permanent basis and yet he went ahead and married the visa applicant despite this. The respondent contends that, as a secondary consideration, any claim to hardship is outweighed by the other public interest considerations.
45.The respondent contends that, having regard to the factors to be considered in exercising the discretion pursuant to the Direction, the Tribunal should refuse the application.
CONCLUSION:
46.The decision under review should be affirmed.
(c)If only as a matter of balance, I set out the Applicant's (much briefer) Statement of Facts and Contentions (not dated), but bearing a Tribunal date stamp of 20 December 2000, as follows:
FACTS
1.The Applicant appeals against a decision to refuse Wendy Semira's (hereafter referred to as Semira) application for a visa.
2.Semira first arrived in Australia on 9th August 1997, on a visitors visa.
3.Semira left Australia on 18th July 1999.
4.Semira lodged an application for a protection visa in Australia on 6th September 1997, which was unsuccessful.
5.Semira met her Sponsor, the Applicant, Joseph Cafarella in March 1998. Semira became engaged to the Applicant on 21st May 1998 and married him on 19th December 1999. The couple have one child, who was born on 11th August 2000.
6.Semira's application for a visa was refused on 8th March 2000. The decision was based on an allegation that Semira had "demonstrated a consistent course of conduct of a fraudulent nature for a period of over two years, until very recently.
APPLICANT'S CONTENTIONS
A.Semira is of good character. It is submitted that in assessing Semira's character consideration should be given to the frank admissions on the part of the Semira and the influence of the her immigration agent.
B.Semira's conduct should be considered in the context of her general behaviour over her life. It is submitted that she has proved herself to be of good character over a long period of time.
C.It is submitted that insufficient consideration was given to Semira's expressions of remorse.
D.It is submitted that it is in the best interest of the Semira's child, an Australian citizen, that the Applicant be allowed to live in Australia.
E.It is submitted that consideration should be given to the difficulties which be experienced by Mr. Cafarella if Semira is not allowed to live in Australia. Mr. Cafarella has aging parents who require him to live in Australia. He is established in Australia, having family, employment and other ties to this country.
F.It is submitted that consideration should be given to the rights of the Applicant's child, an Australian citizen; in particular the child's right to be raised in Australia by her mother arid father
(d) In Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956 the Respondent furnished me with a Statement of Facts and Contentions which contained a statement as to the applicable law. The parties in Re Golding were agreed (and I also was satisfied) that that statement as to the Law was correct. It is repeated as a matter of convenience in these Reasons as follows:
THE LAW
The relevant legislation & Direction 17
Subclass 309 (Spouse) Visa13Pursuant to subclause 309.225 of the Migration (1994) Regulations an applicant for a Spouse Visa must satisfy public interest criterion 4001 at the time of the decision. That criterion in turn requires an applicant to satisfy the Minister he or she passes the Character test.
14Section 501(1) of the Act states as follows:
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.
NOTE: Character test is defined by subsection (6).Relevantly, Section 501 (6)(c) of the Act states as follows:
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.
15The question of whether a person is of good character is answered by reference to the Ministerial direction on the Character test.
16Section 499(1) of the Act states as follows:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.17Direction No.17 of 1999 ("Direction. 17") was made pursuant to Section 499 of the Act on 17 June 1999. Direction 17 provides guidance to decision makers, in making decisions to either refuse or to cancel a visa under Section 501 of the Act. Direction 17 is binding on all decision makers, including merits review tribunals such as the AAT.
18Direction 17 consists of two parts. Part 1 provides directions on the application of the Character test. Non-citizens who are being considered under Section 501 must satisfy the decision maker that they pass the Character test If a non-citizen does not pass the Character test, decision makers are then to exercise discretion on whether to refuse or to cancel a visa. In doing so, decision makers are to take into account both primary and other consideration. Part 2 provides directions as to what those considerations are, and what weight is to be given to them.
19Before finding that a non-citizen is not of good character due 'to their past or present general conduct' (Section 501(6)(c)(ii)), Part 1 of Direction 17 requires a decision maker to have regard to the all the relevant factors of the case. This includes evidence of recent good character, but it also specifically includes inter alia the following:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights.
(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 by subsection 5(1) of the Act.
20Under Part 2 of Direction 17, if a non-citizen does not pass the Character test, decision makers must have regard to the following primary considerations when exercising the discretion on whether a non-citizen should be permitted to enter or to remain in Australia:
(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 relationship between a child or children and the person under consideration, the best interests of the child or the children.
21In relation to the primary consideration of the protection of the Australian community, the following factors are relevant:
(a) the seriousness and the nature of the conduct;
(b) the likelihood that the conduct will be repeated (including any risk recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
Relevantly, offences under the Act, including the making of a false or misleading statement in connection with an entry or stay in Australia is considered to be a serious offence. The general deterrence factor also operates to deter others from committing similar offences.
22In relation to the primary consideration of the expectation of the Australian community, the non-citizen is expected to obey Australia's laws while in Australia.
23In relation to the best interests of the child, this primary consideration comes into effect if the child would be less than 18 years of age when the decision is intended to come into effect. In general terms, the child's best interests will be served if the child remains with its parents, but decision makers should also have regard to the following:
(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship;
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident;
(e) the likely effect that any separation from the non-citizen would have on the child;
(f) the impact of the non-citizen's prior contact with the child;
(g) the time that the child has spent in Australia;
(h) the circumstances, including educational and health facilities of the probable receiving country;
(i) any language barriers for the child in the probable country of future residence and;
(j) any cultural barriers for the child in the probable country of future residence.
24When considering whether to refuse a visa, other factors, although not primary considerations, may be relevant. These are to be given less weight than primary considerations, but they may include:
(a) the disruption to the non-citizen's family, business and any other ties to the Australian Community;
(b) the genuine marriage to, de facto or interdependent relationship with an Australian citizen or permanent resident;
(c) the degree of hardship which would be caused to immediate family members lawful resident in Australia;
(d) the family composition of the non-citizen's family, both in Australia and overseas;
(e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach;
(g) the nature and seriousness of the offence(s) or alleged offence(s);
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry or stay in Australia, including any significant compassionate circumstance; and
(k) the fact that the non-citizen has been formally advised in the past by an officer of the Department of Immigration & Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act, or the visa refusal and cancellation provisions at section 501.
25The decision maker is also required to consider whether there are any international obligations relevant to the non-citizen. Such obligations may arise, for instance, pursuant to the International, Convention on Civil & Political Rights, the Convention Against Torture and the Refugees Convention.
(e) I emphasise that I have included the content of subparagraphs 2(b) and 2(c) purely by way of background and for scene-setting purposes, and not because I necessarily agree with all of the content thereof.
(a) The first two witnesses to give evidence orally were Mrs Melchora Pielago, aunt of Mrs Cafarella, whose statement is Exhibit A1, and Mrs Carmela Cafarella, mother of the Applicant, two of whose statements are Exhibits A2 and A3. Their evidence did not advance this matter to any significant extent. Mrs Pielago said that she did not remember whether Mrs Cafarella had worked while in Australia. This failure of memory was strange, having regard to the fact that Mrs Cafarella indicated that one of her employers in Australia was in fact her aunt, Mrs Pielago. It was through Mrs Pielago that Mrs Cafarella came into contact with Clara Suasin, an immigration agent and solicitor. Mrs Pielago was aware of the fact that her niece had lied to the immigration authorities but said that she was not aware of the extent or nature of the relevant falsehoods.
(b) The evidence of Mrs Carmela Cafarella is contained in Exhibits A2 and A3 and, in addition, in a statutory declaration dated 19 June 1999 (T21, pages 258-259). In essence she considers that her son, the Applicant, loves Mrs Cafarella who is a "nice quiet girl". Mrs Carmela Cafarella, according to her evidence, was not aware of the extent to which her daughter-in-law had got into difficulties with the immigration authorities. She said that her daughter-in-law, Mrs Cafarella, had lodged a protection visa application because "she loved Australia so much". Her evidence indicated that she did not know what a protection visa application was. She said also that so far as she was aware her daughter-in-law, Mrs Cafarella, had not worked while in Australia.The evidence of Mrs Cafarella in chief was very brief. In effect it consisted of her affidavit of explanation (Exhibit A4), which was tendered. However, her cross-examination lasted (as set out previously) for a lengthy period, during which it became clear that for a period of approximately two and a half years, Mrs Cafarella was involved in the making of numerous false and misleading statements to the immigration authorities, and in the production of documents which were, to her knowledge, false. In this context:
(a) Mrs Cafarella came to Australia in August 1997 in order to visit her aunt. She had used the assistance of an agent (recommended by a friend) in order to apply for a visitor's visa, and had (with the help of her father) completed the necessary form in July 1997.
(b) T7, pages 119-122 is a copy of Mrs Cafarella's visitor's visa application. Question 22 (T, page 120) asked her for information as to her current employer and the duration of that employment. She answered that she was employed by RCP and had been with them for three years. She said also that she had been given approved leave of thirty days by RCP.
(c) T7, page 124 is a certification by RCP dated 18 July 1997; it reads as follows:To Whom it May Concern:
This is to certify that MISS WENDY G. SEMIRA has been employed in R.C.P. COMMERCIAL AND INDUSTRIAL COMPANY as an Executive Secretary since June 13, 1994 up to present.Furthermore, we give her a monthly salary of P10,000.00 a month plus yearly bonus and she asked our permission in behalf of the company to file a 30 days leave. The effectivity of her leave is from July 30 to August 30, 1997.
This certification is issued upon the request of MISS WENDY G. SEMIRA for her travel abroad purposes.
It is to be noted that the period involved is from 13 June 1994 "to present" (presumably 18 July 1997).
(d) T21, page 209 is a part of Mrs Cafarella's application for a spouse visa dated 28 July 1999. Question 32 seeks the following information:
Give details of your employment history since leaving school, including any periods of unemployment.
The answer furnished by Mrs Cafarella was as follows:
Period : From 1992 to 1995
Name and address of employer Galang Medical Maternity Clinic
Malibay
Pasay City
Philippines
Type of business Medical Centre
Occupation MidwifePeriod : From 1995 to 1997
Name and address of employer Chang and Tai
Tainan
Taiwan
Republic of China
Type of business Lace Factory
Occupation Process Worker
(e) Again, at T21, page 209, question 33 reads as follows:
Your usual occupation
And the answer to question 33 was:
Midwife / Housekeeper
(f) Further at T21 p 209 question 34 reads as follows:
What are the main tasks or duties performed in your usual occupation ?
And the answer was:
·Assist nurses and doctor in delivering babies
·Clean instruments used in the delivery room
·Assist in the pre natal check up of babies
·Look after small kids
·Do household chores such as cleaning, cooking, food preparation and beautifying the house
There was, it is to be noted, no mention whatsoever of RCP.
(g) Exhibit A5 is a correction certificate by RCP. It is undated, but having regard to the reference in the penultimate paragraph to July 30 1997, must have been executed on or after that date. It reads as follows:
To Whom It May Concern
This is to correct our certification dated July 18, 19997, that Mrs. Wendy S. Cafarella formerly known as Miss Wendy G. Semera has been employed in our company R.C.P. Commercial & Industrial Company with postal address at No. 278 Pilar St. Fortune Village No. 4, Valenzuela City, as partimer executive secretary earning P10,000.00 a month plus yearly bonus from June 13, 1994 up to January 1995.
She filled an indifinite vacation leave which was approved February 1, 1995.
This is also to confirm that she returned to our company with her previous position on March 1, 1997 up to July 30, 1997.
This certification was issued upon request of Mrs. Wendy. S. Cafarella for whatever purposes it may serve best.
T26, page 411 is yet another certificate by RCP, this time dated 1 December 1999; it reads as follows:
To Whom it May Concern:
This is to confirm our certification dated July 18, 1997 to the effect that MISS WENDY G. SEMIRA has been employed in R.C.P. COMMERCIAL AND INDUSTRIAL COMPANY as an Executive Secretary, since June 13, 1994 up to present.
We gave her a monthly salary of P 10,000.00 a month, plus yearly bonus. She asked for a 30-day leave, from July 30 to August 30, 1997, which was aproved.
This certification is issued upon the request of MISS WENDY G. SEMIRA for the purpose of her travel abroad, and for whatever purpose this may serve.
It is to be noted that it refers to the period 13 June 1994 "up to present" (ie. 1 December 1999) – a period of more than five years.
(h) In fact, as Mrs Cafarella conceded, she worked for RCP for seven months from June 1994 to June 1995 and at a later time (after her return from Taiwan) for a period of three months. She worked for RCP, so she informed the Tribunal, on a part-time basis. Mrs Cafarella worked in Taiwan for a period of two years.
The certificates by RCP were, as Mrs Cafarella agreed, fabricated by a person who, she said, was a friend of her family. This was done in order to present a false picture to the Australian authorities in respect of her application for a visitor's visa. It was designed to establish that she had a steady job and that she had been given leave of thirty days, thus indicating that she would not overstay her visitor's visa. The last of the three certificates was sent by Mrs Cafarella herself in December 1999 to the Respondent, so that in relation to RCP, her misleading statements and participation in the delivery of bogus documents extended from July 1997 through to December 1999.
After arriving in Australia, Mrs Cafarella was referred to Carol Suasin, which in turn lead to the making first of an application for a protection visa (refused) followed by an application to the Refugee Review Tribunal ("RRT") (also refused) and thereafter an application to the Respondent under section 417 of the Migration Act 1958 ("the Migration Act"). (See in this regard clauses 3 to 9 under Facts in the Respondent's Statement of Facts and Contentions quoted at paragraph 2(b) of these Reasons). Mrs Cafarella conceded that she was not and had never been a refugee and that the grounds stated were either false or mainly false. In this context:
(a) T8, page 152 (a part of the protection visa application) contains the answers to questions 36 to 40 and reads as follows:I left the Philippines because I was in fear of my life. The facts are as follows :
1.I worked as a contract worker in Taiwan from February 1995 up to February 1997;
2.I finished school in 1992 but was unable to secure employment relation to my course so I decided to find work overseas;
3.In our country, to be able to get a job from another country, one has to engage the services of a recruitment agency;
4.Almost all those people who availed of these services of the agencies were exploited and ripped off and in my case, I have been working for two years but almost half of my earnings went to the agency aside from the excessive placement fee that was charged;
5.When I came back, my friends and I who have suffered from the hands of these agencies, decided to form a group to make other people aware of the practices and warn other people intending to work overseas to be very careful in dealing with these various agencies;
6.We were able to get support from other local officials but these people suddenly lost interest in backing us up when they were threatened in various ways;
7.I was one of the most active members and as a result I got some phone calls and unsigned letters threatening me to stop. Other members were harassed and were no longer able to attend out meetings because of fear;
8.I also got a job refusal when I went for an interview because they said that I am now blacklisted for reasons which not true and unfounded;
9.Before I left the country I was picked up from home and was forcibly taken, blindfolded and brought inside an old building. I was slapped and thrown around and then warned from my activities and to tell others to stop;
10.All other members met the same fate, threatened and harassed and could no longer find job overseas as they have contacted other agencies to be careful with us and telling them that we are trying to create trouble for their business;
11.I started from going to various friends to spend the night but I felt I could no longer do this forever so I thought I should leave the country as going to authorities does not help my situation as I tried before;
12.I believe that I was being harmed due to my membership to this particular group exposing their illegal activities.
Mrs Cafarella agreed that nearly all of it is false and that it was prepared by her together with Clara Suasin.
(b) Mrs Cafarella did not give evidence at the RRT hearing. She said that she was afraid to do so.
(c) T15, page 191 is the application under section 417 of the Migration Act. The third and fourth paragraphs of that application, made by Clara Suasin read as follows:
She left the Philippines because she was in fear of her life from owners of recruitment agencies who exploit and share in the earnings of contract workers in such a way that these workers are unable to enjoy the fruits of their labour. As a result, Ms Semira and her friends decided to form a group to make others aware of the agencies' practices and to warn would-be applicants. This valiant act earned her death threats and physical and emotional harassment. She was taken away and assaulted and this led her to leave the country for fear of being killed.
She believes that if she is forced to return, the harassment will continue and that she will not be protected by the authorities because they require her to pinpoint the particular perpetrator.
Mrs Cafarella accepted that she knew of the application. It is to be noted that it embellishes if anything the previous (false) grounds; see in particular the statement in that application as to the "valiant act".
(d) Mrs Cafarella quite properly accepted responsibility for all of these applications to which she was a participating party. The role of Clara Suasin is less clear, but there were suggestions that she assisted in the fabrications. (I refer in this context to clause 4(a) of my decision in Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967):
She graduated from her university in 1972 and worked for many years thereafter as a teacher. She came to Australia on a visitor's visa (valid for one month) in August 1996 and stayed with her niece and family, who reside in Sydney. Some thirteen days after her arrival she was introduced to Carol Suasin, a solicitor and immigration agent. An application was made for a protection visa (T6). The grounds on which that application was based were written out by Mrs Peljha who copied them from a file provided to her by the solicitor. It is unnecessary to set out those grounds in full since they were altogether untrue
(a) Mrs Cafarella began work about twenty eight days after her arrival in Australia as a cleaner for her aunt and also for others. She stayed with her aunt for eight to ten months. She continued with her cleaning activities (which eventually became contract cleaning) during weekends. She worked continuously until she returned to the Philippines in July 1999.
(b) Mrs Cafarella applied for and obtained an E-class visa which expired 28 days after notification of the RRT decision. From that time onwards (ie. from March 1998) Mrs Cafarella was working illegally, and this situation endured until she left Australia in July 1999.Mrs Cafarella sought and obtained permission to return to the Philippines. She had by this time met and formed a relationship with the Applicant and knew that to apply for a spouse visa required her to leave Australia. Contrary to submissions by Mr Carney, Mrs Cafarella is not entitled to any special credit for the fact that in July 1999 she left Australia voluntarily, precisely because she could not, in the circumstances do otherwise. (See in this context paragraph 28 of the decision by Deputy President McMahon Re Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575).
It is clear then that throughout the period of July 1997 to December 1999 Mrs Cafarella engaged in conduct which, on a balance of probabilities, constituted breaches of sections 234 and 235 of the Migration Act. The penalties provided are such that this conduct on her part must of necessity be treated as serious. Moreover, and as Ms Connor pointed out, prosecutions could be brought at any time within five years from the commission of the relevant offences, and so that at least in theory, prosecutions would be possible until 2002.
It seems clear then that the fourth dot point of clause 1.9(a) and also clause 1.9(b) of Direction 17 (which is binding on me pursuant to section 499 of the Migration Act) apply. The fourth dot point of clause 1.9(a) reads:
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law
and clause 1.9(b) of Direction 17 reads:
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
The effect is that Mrs Cafarella must, in the absence of any countervailing factors, be treated as failing the character test. Clause 1.11 of Direction 17 obliges me to take into account recent good conduct. However, there was no evidence of any such conduct. Exhibit A8 consists of a number of references by persons in Batangas in the Philippines, including the authorities previously referred to. All of them testify as to her good character and reputation. Not one of them indicates any awareness of her breaches in Australia of the Migration Act, and they must thus be treated with some reserve.
I find then that Mrs Cafarella fails the character test. This in turn leads to me to a consideration of the discretion contained in part 2 of Direction 17.
(a) The Applicant gave evidence on his own behalf. His sworn statement dated 15 December 2000 is Exhibit A6.
(b) The Applicant is employed as a storeman and packer and lives at home with his parents and two sisters. He met Mrs Cafarella originally in April 1998 and proposed to her in May 1999. He accompanied her when she returned to the Philippines in July 1999 and visited her twice subsequently, in November 1999, and again in July 2000. He was married to Mrs Cafarella on 10 August 2000, and their daughter Natasha was born a day later.
(c) Natasha was conceived in November 1999. The decision under review was issued thereafter in January 2000. As will be seen, this timing aspect is considered by me to be important.
(d) The Applicant suffers from a speech impediment which causes him to stutter very badly. Exhibit A7 consists of a batch of medical certificates by the doctor previously referred to, testifying to the fact that the Applicant suffers from stress and is depressive. The doctor stated that the stress was caused by his inability to be with his fiancée (later his wife). One cannot say that the medical evidence is either strong or explicit. Dr Chmielowska is not a specialist psychiatrist or a psychologist. There are, as I have said, four certificates in all. They are clear about one thing, and that is that the Applicant is stressed by the absence of his wife. Ms Connor contended that uncertainty as to the outcome of this matter could also be a cause, and that this decision would bring about an end to the uncertainty and thus relieve his stress. As to whether this is so or not is debatable. I am however prepared to accept that he is stressed in particular by the fact that he is separated from his wife and daughter. He came close to breaking down while giving evidence, and his stutter worsened during the course of it.
(e) The Respondent accepts, as do I, that the Applicant is devoted to his wife and daughter and sends them money each month for their support. Mrs Cafarella testified as to the receipt of $300 per month while the Applicant spoke of amounts of $200 or $300 per month.
(f) Clauses 6 and 7 of Exhibit A6 read as follows:I lived in Wendy's residence during the periods I stayed in the Philippines. Wendy lives with her mother, father, three sisters and brother. There are three rooms in her house. There were times when I observed as many as five people sleeping in the one bed. There is not sufficient room for my child. There is no running water. It is only possible to clean one's self by scooping water onto one's body. The house is old and unstable. I also not believe that it is a healthy environment for my daughter.
It would not be practical for me to live in that country. I do not believe that I could obtain a job. I have attempted to read a Philippine newspaper in Australia to ascertain whether there were suitable jobs for me to apply for in the Philippines. I could not read the paper because it was not written in English. I am aware of one Philippine newspaper which is written in English. It is available in the Philippines. I read it in the Philippines. I was not qualified for any of the jobs advertised in the paper. I observed during the period I stayed in the Philippines that most people were not communicating in English. I usually could not understand most people and generally had to communicate by using sign language.
(g) I do not think that the Applicant has made any real effort to obtain employment in the Philippines. But that said, I am inclined to accept that his speech impediment, which is very pronounced indeed, might militate against his being able to obtain employment, and his skills are not such that they are likely to be in great demand in the Philippines in competition with native-born Filipinos.
In considering the discretion provided for in part 2 of Direction 17, clause references contained in this clause 12 should be construed as references to numbered clauses in Direction 17:
(a) Clause 2.3 provides that the primary considerations are as follows:(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 relationship between a child or children and the person under consideration, the best interests of the child or children.
(b) Clause 2.5 provides that the factors which are relevant to the level of risk 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).
(c) I have found Mrs Cafarella's conduct was, on a balance of probabilities, such that it was serious within clause 2.6(c). This is so because of the sentences which could be imposed for breaches of section 234 and 235 of the Migration Act.
(d) All of Mrs Cafarella's conduct as referred to in subclause (c) related to her desire to become resident in Australia, for which purpose she was prepared to transgress the Migration Act as often and to such extent as was necessary. But that said, I do not think it likely that if granted a visa there is any real risk of recidivism, or that she constitutes any threat to the Australian community. The T Documents indicate that she trained as a radiographer (although she did not complete the course) and as a midwife. She could not work as a midwife in Australia during her stay here because she did not have a residence permit.
(e) As to clause 2.3(b) (the expectations of the Australian community) it would be my view that the Australian community does expect that its laws be obeyed. In Re Golding I said at paragraph 11(f):
It is my view, in respect of clause 2.3(b), that the Australian community, regarded as a whole, would expect a non-citizen to comply with Australian law. I refer in this context to clause 38 of the Respondent's Statement of Facts and Contentions, which reads as follow:
The second primary consideration is the expectation of the Australian community. The respondent submits that Ms Golding has exploited the trust of the Australian community by wilfully and illegally manipulating Australia's migration program for personal financial gain. The respondent submits that guests of Australia have the moral and legal obligation to abide by the law. Ms Golding has shown that she was not prepared to do so.
And again in Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 at paragraph 7(a):
Clause 2.3 of Direction 17 (which is referred to in clause 22 of the Respondent's Statement of Facts and Contentions, as set out in paragraph 2(a) of these Reasons) provides as follows:
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
- the protection of the Australian community, and members of the community;
- the expectations of the Australian community; and
- in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
Clause 2.3(c) does not apply and clause 2.3 (a) should be considered in the light of clause 2.5 (the provisions of which are set out in clause 23 of the Respondent's Statement of Facts and Contentions as referred to in paragraph 2(a) of these Reasons). I note that I do not think that there is any real risk of recidivism. As to clause 2.3(b) (and also clause 2.5 (c)) of Direction 17, the Australian community expects a non-citizen to comply with Australian law and would, in my view, regard her persistent and wilful disregard of the Act over so long a period unfavourably. The breaches by Mrs Peljha were by no means isolated; on the contrary they took place throughout her three-year stay in Australia. Clause 9 of the Facts contained in the Respondent's Statement of Facts and Contentions indicates that Mrs Peljha relied in part on the fact that she had been in Australia for almost three years. That argument was of course particularly untenable, given that the length of her stay in Australia arose from her own unlawful conduct.
(f) I propose for the moment to by-pass clause 2.3(c) (read with clauses 2.13 to 2.16) in order to deal with clause 2.17 (other considerations) although it relates to considerations which are not primary. The marriage is, as the Respondent accepts, genuine. However, having regard to clause 2.17(b), the Applicant was aware of his wife's difficulties both before he married her and when he married her, and this is of course a relevant factor. I accept though, having regard to clause 2.17(c) that to affirm the decision would cause hardship to the Applicant in that I do not think it is practically possible for him to make a life for himself in the Philippines. This is so both because of the situation in the Philippines itself (and I accept that it is a third world country) and also because of the particular circumstances of the Applicant who is very much handicapped by his speech impediment. He does not appear to me to be at all self-confident.
(g) I turn to next to consider clause 2.3(c) read with clauses 2.13 to 2.16. Natasha is of course an Australian citizen. She has dual citizenship in that she also presumably has citizenship in the Philippines. She is a baby girl of six months who has been with her mother since her birth. She lives with her mother and her mother's family and is cared for by them. She knows no other life. There is evidence before me (and see Exhibit A6) that she lives in circumstances which are inadequate, and certainly not commensurate with those which would be available to her in Australia. Of course her best interests would in the ordinary way (having regard to clause 2.15) be served if she were to live with her parents, and I refer in this context to both of them. Where it is possible to live with only one parent then in the nature of things, it would generally be the case that her interests would best be served by her remaining with her mother. The Applicant would find it difficult, if not impossible, to care for Natasha on his own, even with the assistance of his own parents and siblings.
(h) This brings me to clause 2.11 and the issue of deterrence. In Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023, and in relation to this question, I said at paragraph 8(d):
Mr Turner dealt with the question of general deterrence also at some length. He said that although there have been a considerable number of these "similar fact situation" cases, the Respondent has not produced any evidence as to show that refusals of visas have resulted in any diminution in the number of these cases; he contended also that that it is likely that evidence of this nature could be made available. Mr Cureton in turn noted this aspect had not been raised by the Applicant in his Statement of Facts and Contentions.
The Tribunal has, on reflection, grave doubts as to whether there is or could be concrete evidence as to this aspect. This would require evidence as to visa applications which would not or might not have been made if the applicants were aware at the time of the applications that subsequent refugee applications would not succeed, or evidence of applications which were not made because the applicants became aware of the fact that refugee applications are likely to fail. When one considers the matter with these aspects in mind, one can readily see that Mr Turner's argument cannot be tenable. This aspect can perhaps be expressed with more force in the negative. If visa applicants received visas notwithstanding the fact they had repeatedly contravened the Act, other visa applicants would receive entirely the wrong message, and arguably would be likely to and would be encouraged to embark on conduct of a similar nature. These "similar fact situation" cases do result in considerable expense to Australia. It may be that certain Australian embassies could do more to make applicants aware of the fact that false refugee applications are not likely to succeed.
This case is in many respects strongly reminiscent of a considerable number of similar fact situation cases to which I referred in clause 12(b) of Re Golding in the following terms:
Although each case of this nature turns on its own facts it is relevant in my view to have regard to decisions and in particular recent decisions of this Tribunal which involve similar fact situations. A search has revealed a large number of just such cases, and which indicate a common problem or theme. That pattern or theme includes most of the following factors:
· a female applicant from the Philippines who enters Australia on a visitor's visa;
· soon after arrival an application is made for a protection visa based on whole or in part on false grounds;
· when that application fails there is an application to the RRT, followed, when that application is in turn unsuccessful, by a section 417 application to the Respondent;
· there is often work in Australia in breach of visas and a lengthy stay in Australia (and towards the end of it a marriage in Australia), before a return to the Philippines.
Indeed this case contains an additional factor, in that the misleading conduct commenced even before Mrs Cafarella arrived in Australia. I refer of course to the distinctly dubious conduct of RCP, not one of whose three certificates can be accorded any degree of weight or trust. Ms Connor expressed some doubt as to whether RCP exists. I do not think that the mere fact that telephone calls to RCP were not being answered indicates that RCP does not exist at all, but certainly it is not unreasonable to be suspicious of RCP and its conduct.
(j) Ms Connor contended that for me to set aside the decision would send precisely the wrong message to others similarly situated. That message might be put succinctly as a message that having a baby solves, or perhaps more aptly, cures breaches of the Migration Act. In the absence of Natasha, this application would in my view have little prospect of success. I would go further, and say that if Natasha had been conceived after notice of the decision under review in January 2000, then similarly I would incline to the view that Ms Connor's argument should be accorded very considerable weight. It is precisely because she was conceived at a point in time prior to that decision which, in my view, results in a relevant distinction. The Applicant and his wife considered, however naively, however optimistically, however ill-advisedly, and perhaps however wrongly, that if she, Mrs Cafarella, went back to the Philippines and made her application for a spouse visa in the Philippines, the application would succeed. (The Applicant admittedly put the matter in totally simplistic terms.) Ms Connor contended further that the Applicant and his then fiancée, when they received notice of the decision under review, nevertheless elected to have the baby and to marry and so that their position is in reality no different. Although there was no evidence before me in respect of the attitude of the Philippines as to abortion, I think it fair for me to accept that the Philippines, being a strongly Catholic country, would have very firm views (and probably laws) against abortion, and so that abortion would not have been an available option. (I do not mean by this to suggest that the Applicant and his wife should, assuming that abortion was an available option, have considered termination of the pregnancy)
(k) It is, I think, desirable that I make it altogether clear that this case turns on its own facts. In particular, and as I have said, Natasha was conceived at a time when the Applicant believed, however optimistically, that he would be reunited with his wife. There was no evidence before me or any contention that Natasha was conceived in order to achieve or obtain a visa.
(l) Having come to the view that Natasha was not conceived as part of a plan, it seems to me that her interests (and they constitute of course a primary consideration) would be best served by her coming to Australia together with her mother in order to live with the Applicant. Her living circumstances in the Philippines do not appear to be satisfactory (see Exhibit A6 and, in particular, the extract from Exhibit A6 referred to in paragraph 11(f) of these Reasons) and while there was evidence before me that she is so far happy and healthy, this may not always be the case.
I have been referred to a large number of decided cases, and not by any means confined to those referred to in the Respondent's admirable and comprehensive Statement of Facts and Contentions. I do not think I need refer to them, more particularly because the facts in this case do not appear to have arisen in this particular manner (so far as I am aware) previously. Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 is a case where the facts are similar to some extent, but they are in my view distinguishable. Although the conduct of the visa applicant in that case fell into the same general category as that of Mrs Cafarella there are degrees, and the conduct of the visa applicant in Re Ayaad was in my view more serious. But there is an even more important distinguishing picture; the child in Re Ayaad was in fact living (in New Zealand) with both of his parents, and not merely one of them. Further, living conditions in New Zealand are somewhat more comparable to those in Australia than are the living conditions in the Philippines. One of the considerations which should be taken into account by the decision-maker when looking at the best interests of the child is the circumstances, including educational and health facilities of the probable receiving country.
Reverting then to the primary considerations, I have already noted that I do not think that there is any real risk of recidivism and I also do not think that Mrs Cafarella would constitute a threat to the Australian community. This does not (and is not intended to) excuse her conduct, which was cynical in the extreme. On the other hand it must be remembered (in mitigation only) that all of that conduct was undertaken purely for economic reasons and in order to obtain a better life for herself in Australia. If given a visa, there is no reason why she should find it necessary to embark on the same or similar conduct. I have already said that the expectations of the Australian community would be that persons who transgress against Australian law should not be granted visas, but it does seem to me that it is at least conceivable that that attitude might be ameliorated, at least to some extent, in the particular circumstances of this case, and having regard in particular to the fact that there is a baby, an Australian citizen, whose interests must be treated as primary.
In considering all of the various factors contained in part 2 of Direction 17, I must note that in this case the balance is a very fine one. I have come to the conclusion that on balance this is a case where the discretion can be exercised in favour of the Applicant, and indeed where the decision is as borderline as this, there is perhaps reason to incline towards the exercise of it in favour of the Applicant and his wife. I am of course conscious of the fact that there are very large number of similar fact situations and that a considerable number of them involve Filipino wives (and, to a lesser extent, husbands), and so much so that Filipino spouse cases have come to constitute a subclass all of their own. Deterrence is very real and very important, and it is important that the wrong message should not be sent. It is for this reason that I have emphasised that this is very much a case which turns on its own facts.
In all the circumstances the decision under review is set aside and the matter is remitted to the Respondent for reconsideration, but with the direction that the visa application should not be refused under section 501 of the Migration Act.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block.
Signed: ...........[sgd Marcus Ryan].................................
AssociateDates of Hearing 8 & 9 January 2001
Date of Decision 22 January 2001
Counsel for the Applicant Mr William Carney
Solicitor for the Applicant M J Woods & Co
Solicitor for the Respondent Ms Adele Connor
Australian Government Solicitor
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