Canizares-Maranan and Minister for Immigration and Multicultural Affairs - [2002] AATA 686

DECISION AND REASONS FOR DECISION [2002] AATA 686

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/1320

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARISSA NORA CANIZARES-MARANAN
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date13 August 2002
PlaceMelbourne

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 s501 of the Migration Act 1958.
   [Sgd S P Estcourt QC]
  Deputy President
CATCHWORDS
Immigration - refusal of visa on character grounds - false and misleading conduct in dealing with immigration authorities - illegal overstaying of visas - working without permission - genuine marriage to an Australian citizen - hardship to immediate family - best interest of children - decision to refuse set aside.
Migration Act 1958 – s501

REASONS FOR DECISION

13 August 2002 Mr S P Estcourt QC., (Deputy President)

This is an application by Marissa Nora Canizares-Maranan ("the review applicant") for the review of a decision made by a delegate of the Minister for Immigration & Multicultural Affairs ("the respondent") refusing, pursuant to s501 of the Migration Act 1958 ("the Act") to grant the applicant's husband Raphdy Clarence Maranan ("the visa applicant") a Sub-class 309 Spouse (Provisional) Visa and a Class BC Sub-class 100 Spouse (Migrant) Visa.
Section 501 of the Act provides relevantly:
"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.
…
501(6) For the purposes of this section, the person does not pass the character test if:
…
(c) having regard to either of the following:
…
(ii) the persons past and general conduct;
the person is not of 'good character'."
The exercise of power under s501 of the Act involves, firstly a consideration of whether the visa applicant is of good character and secondly, of whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant notwithstanding his or her failure to pass the character test.
In his decision the Minister's delegate refused to grant the applicant's visas under s501(6) on the basis that he found that the applicant had not satisfied him that he passed the character test or that he should exercise his residual discretion in his favour.
The review applicant is the wife of the visa applicant. She is an Australian citizen of Filipino ethnicity. She became an Australian citizen on 26th January 1998.
The visa applicant who was born in the Philippines is a citizen of that country and is presently living there.
The review applicant has two children, Megan from her previous marriage to one Armando El Salvador and Aubree from her marriage to the visa applicant.
I find the following facts which are largely taken from the respondent's statement of facts and contentions:
(a)the visa applicant first entered Australia in 1986 on a short stay visa allowing a stay of one month. During this period he worked illegally under the name Ralph Miguel Maranan (which name depending on the view one takes of the evidence may be false, but which question I find unnecessary to decide given the other serious migration misconduct which I have found on the part of the visa applicant);
(b)the visa applicant remained in Australia after the expiry of this visa and became a prohibited non-citizen;
(c)in 1989 the visa applicant applied for a "December 1989" permanent resident's permit which application was refused in 1993;
(d)on 14 February 1994 the visa applicant returned to the Philippines;
(e)on 7 January 1998 the visa applicant applied to the Australian embassy in Manilla for a further visitor visa. The application was refused on the basis that the visa applicant was not a genuine visitor;
(f)on 21 October 1998 the visa applicant applied for a Sub-class 456 Short Stay Visa under the assumed name of Mario Rosales using a false passport and date of birth. The visa was granted allowing a stay of three months;
(g)on 16 December 1998, the visa applicant entered Australia under the false identify of Mario Rosales. After arrival he was granted a further stay of one month;
(h)in 1999 the visa applicant applied again for a further visitor visa in the name of Mario Rosales relying on the false passport and a false letter of employment from the Philippines. This application was refused;
(i)the visa applicant remained in Australia after the expiry of the visa held in the name of Mario Rosales on 3 June 1999;
(j)in September 1999 the visa applicant met the review applicant and they commenced a de facto relationship in December 1999;
(k)in July 2000 the visa applicant voluntarily approached the Department of Immigration & Multicultural & Indigenous Affairs and declared that he had entered Australia using a false name and passport. The visa applicant was then granted a Bridging Visa E on this date;
(l)on 7 August 2000 the review applicant and the visa applicant were married and on the same day the review applicant gave birth to the couple's daughter Aubree;
(m)on 7 October 2000 the visa applicant left Australia and returned to the Philippines;
(n)on 19 February 2001 the visa applicant made the present visa applications.
In her closing submissions on behalf of the review applicant, her counsel, Ms Germov, indicated that she did not propose to waste the Tribunal's time by submitting that the visa applicant did not fail the character test. That concession was properly made.
I have in evidence before me the following documents:
Exhibit 1 Documents filed by the respondent under s37 of the Administrative Appeal Tribunal Act 1975 (the T documents);
Exhibit 2 A statement of the review applicant dated 21 March 2002;
Exhibit 3 A statement of the visa applicant dated 26 March 2002;
Exhibit 4A report on the review applicant's psychological health by Antoinette Esmaquel Butler dated 18 March 2002;
Exhibit 5US Department of State report on the Philippines;
Exhibit 6Statement of Chris Gunasekera dated 22 March 2002.
I have carefully considered all the material in evidence before me in relation to the only remaining issue in this matter, that is, whether the residual discretion under s501 of the Act, to nevertheless grant a visa in the face of the failure to pass the character test prescribed by that section should be exercised in favour of the visa applicant.
Ministerial Direction No. 21 requires the Tribunal when considering the exercise of the residual discretion under s501 of the Act to adopt a balancing process between three "primary considerations" and a number of "other considerations".
The three primary considerations are:
(o)the protection of the Australian community, and members of the community;
(p)the expectations of the Australian community; and
(q)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.
A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No. 21, a consideration of:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated;
(c)the likelihood that the visa refusal would prevent like offences by other persons.
Ministerial Direction No. 21 makes it clear that the Australian Government regards serious offences against the Act as very serious. This is not surprising as s234 of the Act makes it an offence, in connection with the visa application to make a false or misleading statement and provides a penalty for a breach of that section of 10 years imprisonment or a fine of $110,000 or both.
I am satisfied that the visa applicant's conduct is most serious. Whilst illegal overstays of visas and working illegally in Australia are not uncommon and can amount to less serious examples of offences against the Act, the conduct of the visa applicant in this case in obtaining and using a false passport to travel to Australia under a false name and then to extend and ultimately overstay visas obtained under that false identity, is in my view a serious example of a serious offence against the Act.
I have given specific consideration in this matter to the question of cultural reliance on elder siblings and the visa applicant's evidence that his older sister told him originally that he was going to continue his schooling in Australia, but when he arrived she told him that he had to go out to work and he obeyed her because he was scared of her, he was not able to make his own decisions, he was obligated to her and she was a very dominating person.
I have reached the view however, that as there was not a great age difference between brother and sister and that as the visa applicant was already quite well educated by the first time he came to Australia, I cannot accept his explanation.
Neither, can I fully accept his explanation about the obtaining of a false passport. He said that he did that after giving it a lot of consideration but that the agent – the recruiter who made the arrangements - forced him into that and that he came to Australia because he was forced. He said that the name was given to him by the agent and that he was very frightened about coming to Australia on an aeroplane using a false name.
Whilst I can perhaps accept that he was very frightened, my assessment of him as a witness was the fact that that fear was confined to what one might expect to accompany an illegal entry into a country using a false passport. I cannot accept that he was forced in any way into that position.
As to the question of recidivism, I find it unlikely, given that the applicant has applied to migrate to Australia, that if he were successful he would offend again in this particular way especially as it now appears he does appreciate the consequences of his conduct and is remorseful. It is possible having regard to the gravity of his conduct in obtaining a false passport and entering Australia illegally under a false identify that in different circumstances he may display a similar propensity for deceit with Australian officials. I do not however regard that prospect as having a high degree of probability in view of his otherwise good character.
I am satisfied that in this case that a refusal of the visa applicant's applications would send a clear message to other persons in the Philippines similarly minded that if they engage in this sort of conduct the consequence will be that they will subsequently not be permitted into Australia. I must however balance this question of general deterrence in an overall consideration of the factors influencing the exercise of the discretion.
As to the expectations of the Australian community, it is clear that Australian citizens expect persons wishing to come to this country to be open and honest with migration officials, and would condemn the entry into Australia by means of a false passport using a false identity, and the overstay of that fraudulent visa. The community would not expect the applicant to be entitled subsequently to the grant of a visa even after making a full and open confession to authorities prior to being detected. This primary consideration must also be weighed in the balance.
As to the third of the three "primary considerations", namely the best interests of the child or children of the person under consideration, there are potentially three children involved, namely the review applicant's daughter Megan aged 7 in Australia, the visa applicant and the review applicant's daughter Aubree aged nearly 2 in Australia and another child of the visa applicant born to a previous relationship, a son Arben aged 10 in the Philippines.
I am satisfied on the evidence that Arben has been at least informally adopted by his mother's new partner in the Philippines and that Arben's best interest would be served by remaining in the Philippines, the presence or absence of the visa applicant in that country making little difference in that regard.
The review applicant's daughter Megan has an ongoing relationship with her natural father in Australia, spending three out of four weekends with him and periods of school holidays in his care. The review applicant would not be able to take Megan out of Australia on a permanent basis without being in breach of current Family Court orders concerning custody and access.
Further, I have evidence from the applicant's solicitor Mr Gunasekera that Megan's father Armando would never agree to Megan going to live in the Philippines.
It would seem therefore extremely unlikely, if not impossible, for the review applicant, at least in the next ten or so years, to be able to live together with the visa applicant and her two children unless the visa applicant is able to return to Australia.
I fully accept that the best interests of each of these two children would be best served by living together as a family unit in the same country as both their parents.
The review applicant gave the following evidence which I accept:
"Raphdy and I speak about twice a month. It is very difficult for us because there is no telephone or internet service in his village and he has to travel far and the road is very bad in order to have access to these facilities. Megan misses him very much and keeps asking about him every day. Aubree is 19 months old and although she is not talking much yet, Raphdy speaks to her over the telephone and I show her pictures of him. I tell him 'this is your papa'. Megan keeps telling me that she wants Raphdy to come home to look after us. He has sent us clothes for presents."
Equally I accept the review applicant's evidence that when the visa applicant was in Australia he got along extremely well with Megan, that he always took them to parks and out to eat somewhere at a restaurant where Megan was happy, that they had quality time together and Megan became attached to him whilst retaining her loved for her natural father.
The real question for a decision in this case, is whether the best interests of Megan and Aubree, which would be served by the visa applicant being able to come to Australia, coupled with the relevant "other considerations" outweigh the first two of the primary considerations.
The "other considerations" are set out in Direction No. 21 and I am required to take them into account although generally they will be accorded less individual weight than the three "primary considerations".
In this respect the direction provides as follows:
"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:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
'The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.'
Article 17.1 provides that:
'No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation.'
(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
in assessing the compassionate claims of the Australian partner (Australian citizen, permanent resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;
(d)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 (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the applicant is for a temporary visa or a permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and 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 cancellations provisions at section 501."

In addition to a consideration of Megan and Aubree in the context of these "other considerations", that is, their entitlement to a family unit, the following "other considerations" have relevance to this case:
(a) genuine marriage to an Australian citizen;
(b)the degree of hardship caused to immediate family members lawfully resident in Australia;
(c) recent good conduct on the part of the visa applicant.
The review applicant gave the following evidence which was unshaken in cross-examination and which I accept:
"2. I was born on 9 December 1962 in the Philippines. I migrated to Australia in 1993 on a fiancée visa. I was sponsored by my former husband, Armando Salvador ("Armando"). I have no relatives in Australia other than my children, Megan Salvador born on 5 December 1994 and Aubree Maranan born on 7 August 2000. My parents, two brothers and two sisters live in the Philippines. I have only been back to the Philippines twice since coming to Australia. I became an Australian citizen on 26 January 1998.
3.I qualified as an Accountant in the Philippines, graduating with an accounting degree from the University of Santo Thomas. I am presently employed as a Financial Accounting Officer at the Head office of Myer Grace Bros at 295 Londsale Street, Melbourne. I earn a yearly salary of $40,000.
4.My marriage to Armando broke down in December 1998. He is a real estate agent. Throughout our marriage he could never hold down a job. He had grandiose ideas but would never take action to make them a reality. He would put me down constantly even though I was the breadwinner for most of our marriage. I had saved the deposit on our house in Hoppers Crossing and was paying off the mortgage.
5.In mid-December 1998, I went to a women's refuge for two weeks after he became emotionally and physically violent to me. I then went back to the marital home at the end of December 1998 to recover the house as he promised to leave the house and give sole occupancy. Armando reneged on this promise and pleaded that I let him use one room in the house and Megan would not let him go either because she was very upset at the thought of her father leaving. Armando had told me he would leave me in peace but he did not. He became violent again and I left. I stayed in a women's refuge for three weeks. In July 1999 I started Family Court proceedings. My sister came to Australia from the Philippines to help me out and stayed for three months. I was afraid to be alone and moved in with Maria, a girl I worked with. I met my husband Raphdy in September 1999 through Maria who was the girlfriend of Raphdy's brother, Rowen. Raphdy was very gentle and considerate – the opposite to Armando. Megan liked him and I felt comfortable talking to him. He impressed me as responsible and willing to work. He was good with Megan and shared my catholic faith.
6.Raphdy started to visit regularly and took Megan and myself on outings to the park, to the movies, the beach and to restaurants. I told him my problems and he was very sympathetic. He started to attend my local parish church with me – St Mary's in Thornbury. He introduced me to the "Couples for Christ" community. I used to go the Lalor group which meets once a month. It is a mainly Catholic social group where Christians would share a meal, pray and listen to laymen sharing their faith. I fell in love with Raphdy very quickly. I felt that our relationship was somehow fated to be. We became intimate in October 1999 and Raphdy moved in with us on a full-time basis in December 1999.
7.When Armando found out about my relationship with Raphdy, he was furious and called me an adultress. He threatened to take Megan away from me. I filed for divorce in January 2000. I also learned that I was pregnant around that time. Raphdy and I planned to get married as soon as possible after my divorce came through. Raphdy gave evidence in the Family Court during my custody dispute with Armando. My custody arrangement with Armando is that I have residency of Megan. Megan resides with me on school holidays. Megan stays with Armando for three weekends out of every four. During school holidays, Megan spends equal time with each of us. Armando is supposed to pay maintenance but has not done so because the income he declares is too low.
8.My divorce from Armando came through on 24 July 2002. Raphdy and I wanted to get married as soon as we could because we did not want our baby born out of wedlock. Whenever I discussed our plans for the future, I noticed Raphdy appeared to be depressed and uncomfortable. I confronted him about it and he confessed his circumstances to me. This was around early July shortly before the Family Court proceedings were finalised. I was very distressed because I had thought that I had found happiness after going through a bad marriage and a traumatic divorce. I told Raphdy that we had to sort out the situation because the baby was on its way and I was worried about what would happen to us. My family lawyer, Donald Lampe, referred me to Chris Gunasekera ("Chris") who practices in both family and immigration law. Chris advised us to go the Immigration Department and tell them the truth.
9.Chris came with us to the Compliance Section at the Immigration Department on 18 July 2000 when we met with Mr Paul Farrell ("Mr Farrell") who was very sympathetic. We understood that Raphdy would have to return to the Philippines and be sponsored back as my husband. Mr Farrell was prepared to let Raphdy stay in Australia until Raphdy obtained his passport or travel document and for our child's birth. Raphdy went back to the Philippines in the first week of October 2000. I have found it very hard to cope on my own. I have mild scoliosis which makes it difficult for me to carry and lift things but I cannot afford to pay for treatment. My take home pay is $2500 nett per month. I live in a two bedroom flat where I pay $135 per week rent. I pay $160 per week for child care because I have to work in order to support myself and the children. I receive a single parent's support benefit of $300 per fortnight. If Raphdy were here with us I would not need that benefit.
…
11.I come from Manila where my family still live. My father is 80 and my mother is 75. One brother and one sister still live with my parents. There is no room in their home for Raphdy, myself and three children. I do not know how we would survive in the Philippines because the economic situation there is very bad and I would have to try to find work, a place to live and someone to look after the children. I have lived in Australia for eight and a half years and made my life here. I am an Australian citizen as are both my daughters. My daughter Megan loves Armando. Although my relationship with Armando is hostile, we try not to show this in front of Megan. Megan is an Australian child and has finally settled down after the trauma of my divorce.
…
19.I live in a constant state of stress and anxiety. I try to hide this from my daughters but sometimes I snap at them or break down in tears. I cannot spend as much time as I would like with them because I have to earn a living. My parish community and my friends in Couples for Christ provide me with a lot of emotional support but they are not a substitute for Raphdy…".

In addition I have the evidence of the review applicant's psychologist tendered by consent which discloses that the review applicant has symptoms of acute stress disorder with anxiety followed by depression as a result of the refusal of the visa applicant's migration application (it also suggests that Megan might effect a significant feeling of grief and loss through prolonged separation from the visa applicant with whom she forged an affectionate attachment).
I find that the marriage between the review applicant and the visa applicant is a genuine one, and that although at the time the marriage was actually solemnised, the review applicant knew of the visa applicant's character concern in a migration sense, she learned of that fact whilst she was pregnant with Aubree and only after she had already formed a genuine deep and loving relationship with him.
The degree of hardship which she and Megan and Aubree will suffer if they are not able to live together in a family unit with the visa applicant is clearly very significant from an emotional and psychological point of view and the review applicant's compassionate claims must be given weight.
I turn to a consideration of the recent good conduct of the visa applicant.
"Recent good conduct" has been held to mean recent good conduct in an immigration sense (Re Moengangongo v Department of Immigration & Multicultural Affairs [2001] AATA 74 at para.40).
If that construction is correctly applicable to paragraph 2.17(8) of Ministerial Direction No. 21, the evidence shows that this is a case where the visa applicant was not apprehended or placed in detention, rather he voluntarily approached the Compliance Section of the Department of Immigration & Multicultural Affairs on about 18 July 2000 and declared that he had entered Australia using a false name and passport.
If, on the other hand, as was thought possible by Deputy President Block in Tuiono v Department of Immigration & Multicultural Affairs [2001] AATA 92 at paragraph 9(b), the concept of recent good conduct is wider than conduct in an immigration sense then there is considerable evidence that the visa applicant is a good man and the character references attached to his statement of evidence (Exhibit 3) attest his exemplary character other than in an immigration sense.
After a searching review of the three primary considerations and the other lesser considerations I have reached the view that, in this particular case, notwithstanding the serious nature of the visa applicant's migration misconduct, the compassionate claims of his wife and the great hardship to her as a result of her inability to live with her husband and two daughters as a family unit in the Philippines, coupled with the resulting psychological trauma to her, when taken together with the best interests of Megan and Aubree, the evidence of the visa applicant's voluntary surrender to authorities and his otherwise good character, result in the balancing called for by Ministerial Direction No.21 falling on the side of an exercise of the residual discretion under s501 of the Act in favour of the visa applicant.
It follows that the decision of the Tribunal is that the decision under review be set aside and that the matter be remitted to the respondent for re-consideration with a direction that the visa application not be refused under s501 of the Act.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing  19 July 2002
Date of Decision  13 August 2002
Counsel for the Applicant        Ms Roz Germov
Solicitor for the Applicant         Chris Gunasekera Solciitors
Counsel for the Respondent    Mr Derek Wood
Solicitor for the Respondent    BLake Dawson Waldron