Damakas and Minister for Immigration, Multicultural and Indigenous Affairs
[2002] AATA 355
•16 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 355
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1582
GENERAL ADMINISTRATIVE DIVISION )
Re Tim Damakas
Applicant
And Minister for Immigration Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal R P Handley, Deputy President
Date16 May 2002
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 spouse provisional visa application – character test – failure of the visa applicant to pass the character test by reason of her past and present general conduct – discretion that the Tribunal may exercise if visa applicant fails the character test – importance of deterrence and expectations of the Australian community outweigh any hardship to the visa applicant – discretion should not be exercised in favour of visa applicant – decision under review is affirmed.
Migration Act 1958 ss 499, 499(1)(2)(2A), 500, 501, 501(1)(6)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Leha andMinister for Immigration and Multicultural Affairs [2000] AATA 1054
Re May and the Minister for Immigration and Multicultural Affairs [2000] AATA 480
Re Lachmiaya and the Department ofImmigration and Multicultural Affairs (1994) 19 AAR 148
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
16 May 2002 R P Handley
This is an application by Tim Damakas ("the Applicant") for a review of a decision of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 28 September 2001 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Epifania Villanueva Damakas ("the Visa Applicant"). At the hearing, the Applicant was represented by a friend, John Morris, and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and in person by the Applicant, John Morris, Petronilo Santos and Juanita Santos.
BACKGROUNDMr Damakas was born in Greece on 9 August 1931 and is aged 70. He arrived in Australia in August 1947 and became an Australian citizen on 6 March 1961. Mr Damakas was married to his first wife, who was born in Greece, for 25 years. He has two children by that marriage, aged 32 and 27. Mr Damakas married his second wife, Pede, who was from the Philippines, in 1980. She died in 1992. Mr Damakas' third wife, Evelyn, whom he married on 18 February 1994, was also from the Philippines. That relationship ended when Evelyn left him in 1995, and they were divorced on 25 July 1997.
The Visa Applicant, Mrs Damakas, was born in the Philippines on 12 July 1937 and is aged 64. Mrs Damakas was first married in the Philippines on 6 November 1954. She and her husband adopted two children who are aged 37 and 30 and are married and living in the Philippines. Mrs Damakas' first husband died on 5 March 1989. She first applied for a visitor visa to come to Australia in January 1994, an application which was refused in February 1994. She reapplied in November 1994 and, a visitor visa having been granted, she entered Australia on 18 December 1994. The stated purpose of the visit was to see her sister and family who live in Sydney. Mrs Damakas returned to the Philippines on 1 February 1994.
When Mrs Damakas applied for a further visitor visa in July 1996, this was granted on 18 July 1996 and she entered Australia on 22 September 1996 with permission to stay for 3 months. The stated objective of this visit was again that of visiting her sister and family. On 12 December 1996, Mrs Damakas applied for a protection visa claiming that she had been receiving death threats and her life was at stake. That application was refused on 1 February 1997, a decision which was affirmed by the Refugee Review Tribunal ("RRT") on 22 July 1997. On 9 August 1997, Mr and Mrs Damakas were married in Sydney. On 20 August 1997 and 12 May 1998, ministerial intervention was sought on Mrs Damakas' behalf but declined on 17 May 1998 and 22 July 1998 respectively. On 25 August 1998, Mrs Damakas departed Australia and returned to the Philippines.
Mrs Damakas lodged an application for a subclass 309 spouse (provisional) visa which was received at the Australian Embassy in Manilla on 1 September 1998. On 31 March 1999, this application was refused on the basis that Mrs Damakas did not satisfy the definition of "spouse" set out in Regulation 1.1.5A of the Migration Regulations. Mrs Damakas sought a review of this decision by the Migration Review Tribunal ("MRT") which, on 23 April 2001, decided that Mrs Damakas' spouse relationship was genuine and remitted the matter to the Minister with a direction to that effect. On 28 September 2001, a delegate of the Minister at the Australian Embassy in Manilla decided to refuse the grant of a subclass 309 visa to Mrs Damakas on the ground of Mrs Damakas' past and present general conduct, pursuant to s 501(6)(c) of the Migration Act 1958 ("the Act"). The decision-maker stated Mrs Damakas had made false and misleading statements in connection with her protection visa, and decided not to exercise the discretion in s 501(1) of the Act in her favour. On 16 October 2001, Mr Damakas lodged an application for a review of this decision by the Tribunal.
On 21 June 2000, Mrs Damakas applied for a long stay visitor visa. She did not reveal her marriage to Mr Damakas in the application, which was made in her previous married name of Epifania Villanueva. This application was refused on 26 June 2000 on the ground that the decision-maker was not satisfied that Mrs Damakas was a genuine visitor and that she would depart from Australia before the expiry of her visa.
RELEVANT LAWUnder s 501(1) of the Act, 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. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…
Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
Either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mrs Damakas is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Tim Damakas (the Applicant)Mr Damakas said his first wife was of Greek origin and they were married for 25 years and had two children. He met his second wife in the Philippines in 1980, they were married, and then lived together until she died in 1992. His third wife was also from the Philippines. They met in 1993 and were married in Australia in early 1994. However, after they were married, she started going out with other men and said he was too old for her. Mr Damakas said she tricked him into marrying her. They were divorced in 1995. Mr Damakas said he met his present wife, Mrs Damakas, through a friend, Mario. Mrs Damakas was here as a tourist, staying with her sister. A couple of months after they met, Mrs Damakas came to live with him and they were married on 9 August 1997. Mr Damakas said he is old and in ill health and is lonely when he is on his own. He needs someone to look after him. He suffers from diabetes. His right leg is "crook" with a circulation problem which means he can walk for about 20 minutes but then has to stop for 10 to 15 minutes. His doctor has said he needs an a operation to fix the problem. He has also recently had an eye operation to remove a cataract on his right eye.
Mr Damakas said his wife is a good woman and he was happy when she was with him. Now he is worried. He does not only want his wife to be here to do his cooking, cleaning and washing; he also wants to be with her because he loves her, and for her company. He does not sleep well at night, often waking for an hour or two and worrying about what will happen to him. He did not have any problem with the Department of Immigration in obtaining entry into Australia for his previous two wives, so he assumed he would have no problem with his present wife. It only took two months to get his previous wife here and he does not understand why the Department has refused Mrs Damakas a visa. He said his memory is not good. He does too much thinking and too much worrying and he forgets things. Mrs Damakas told him she had come to Australia on a visitor visa and that she had later applied for a refugee visa. Her son had been with her and he also applied for a refugee visa. His wife said they wanted to stay in Australia but not because of fear of living in the Philippines. He married her so that she could stay here but if he had known he "would have all this trouble", he would not have married his wife. Mr Damakas was aware that the RRT affirmed the decisions refusing his wife and her son a refugee visa and that the RRT decision about his wife's case was in late July 1997.
Mr Damakas was asked about the letters sent on behalf of his wife seeking Ministerial intervention. He said he had accompanied his wife to see Clara Suasin, a Migration Agent (T10). He agreed that paragraph 3 of Ms Suasin's letter of 19 August 1997 seeking Ministerial intervention (T10) was false and that his wife did not believe her life to be in danger if she returned to the Philippines. He said she relied on others in dealing with migration matters.
Mr Damakas said he visited the Philippines for three months nearly two years ago. He said his wife worries about him and rings him every Monday night when she often cries on the phone. Mr Damakas said he is lonely and wants his wife to be with him. If he gets sick, he needs someone to help him. Two weeks ago he was sick with the flu and there was nobody to get him a glass of water.
Mr Damakas said he owns his own house and is currently renting a room in the house to a lady who also cleans the house for him. He does a little shopping everyday when he goes out because he cannot carry heavy things. He does his own washing in the washing machine and does his own cooking. He can not drive a car because he does not have licence. During the day, he goes out because it is too lonely staying at home. He often comes into the City from Bankstown Station. Sometimes he gets off at Circular Quay and walks around or he might take the ferry to Manly. On the train, he reads the newspaper or has a sleep, which he sometimes also does in the park.
Epifania Villanueva Damakas (the Visa Applicant)
Mrs Damakas acknowledged that her first application for a visitor visa in 1994 was refused, but her second application in November 1994 was approved. She came to visit her sister and her sister's family and thought Australia would be a good place to live. She said he met her husband through a friend from Bankstown about a month after being in Australia on her first visit. She said she pitied her husband living alone and no-one taking care of him. She helped him with his cleaning, washing, and cooking because he is sick and sometimes cannot walk. Part of the reason for her second visit to Australia in 1996 was to visit Mr Damakas.
When Mrs Damakas applied for a visitor visa in 1996, she said it was her intention to stay beyond three months, but she did not know how this could be achieved. Her son came to Australia at much the same time and they decided to go and see a solicitor to try and stay longer. They were advised to lodge protection visa applications, although Mrs Damakas said she did not understand what a protection visa was. Mrs Damakas said she only saw the solicitor once and paid her $1,500. She said the story in her application was made up by her son Manny (Emanuel Villanueva). She signed the application but did not know what she was signing and was not aware that it was a legal document.
Mrs Damakas said her romance with Mr Damakas started when she stayed with him, although she could not remember exactly when this was. She married him because no one looks after him or takes care of him and because she loves him. She started having a sexual relationship with her husband in about May 1997.
Mrs Damakas said she takes medication for high blood pressure. She had an operation for a lump in her stomach in May 2001 but has recovered now. However, she thinks this operation has affected her memory.
In cross-examination, Mrs Damakas agreed that her nephew had suggested to her that she should lodge a protection visa application because it would enable her to get a bridging visa. She said that her son's statement dated December 2001 is probably incorrect. She said her son wrote the story in her protection visa application. It is not a made up story – he really was threatened in the Philippines. However, Mrs Damakas acknowledged that she did not care what story was told, so long as the visa application was successful. Mrs Damakas said she could not remember applying to the RRT for a review, nor could she remember telling Mr Damakas about her immigration status. They did not talk about that sort of thing. She said her visitor visa applications were made for her by her son without using a migration agent.
Mrs Damakas was asked about an application for a visitor visa made by her on 21 June 2000 (T48). She said she had no knowledge of this application which was made for her by an agent. Her son went and saw the agent to get the visa application completed. Mrs Damakas then took the application to the Australian Embassy. She said she was not aware that she did not disclose her current marriage and married name in the application because she did not check the answers. She wanted to come to Australia to see her husband. Mrs Damakas said although she started using her married name when she married Mr Damakas in August 1997, she continued using her name Villanueva until August 2000 when Mr Morris told her she should use the name Damakas.
Mrs Damakas maintained that she had acted honestly. If she gave incorrect information at the interview at the Australian Embassy, it was because she did not understand the questions. The visa applications were made for her by others.
John MorrisMr Morris said in March 1997, he had a Philippino girlfriend, Celia Delos Reyes, who was staying at Mr Damakas' house. Mr Morris met Ms Reyes through a contact in his church. Mr Morris lives in Forster and he invited Ms Reyes to spend Easter that year with him. After Easter, he drove Ms Reyes to Mr Damakas' home which is where he met Mrs Damakas. At that time, Mr Damakas was already "seeing" Mrs Damakas, although they were not living together. After that Easter, Mr Morris was frequently at Mr Damakas' house because he and Ms Reyes became good friends.
Mr Morris said he thought Mrs Damakas had arrived in Australia in September 1996 and was staying at her sister's house. He described one occasion when Mr Damakas, Mrs Damakas, and Ms Reyes all came to stay with Mr Morris in his home at Forster.
Mr Morris said about June or July 1997, Mrs Damakas started living with Mr Damakas and was doing his washing, ironing, cooking and reminding him to take his medication. Mr Morris was aware that Mrs Damakas had an immigration problem and was seeking legal advice about staying in Australia. He does not know why nobody advised her early on to lodge a spouse visa application. Mr Morris did not discover that she had not made a spouse visa application until 1998 when he helped her make that application. Mr Morris said notice of their intended marriage was given to the Department by letter dated 23 June 1997 (T14). Mr Morris also advised Mrs Damakas' son to return to the Philippines because he was in Australia illegally.
Mr Morris said that in the Philippines, people tell you what they think you want to hear. He has experience of this through his marriage to a Philippino woman who he met through his church. Mr Morris said Mr Damakas is a good and honest person. He and his wife sought legal advice but did not get the right advice, even though they were not aware of this. Mr Damakas has a bad memory and, when Mr Morris stays with him, about monthly, Mr Damakas always says he has a broken heart because he loves his wife and he cannot sleep. Mr Morris said Mrs Damakas has a Christian outlook on life and helps other people. She has her husband's health at heart and is very loving and caring. However, she is a simple person and has a child-like mentality.
Petronilo SantosMr Santos said he has known Mrs Damakas, who is his wife's sister, well for over forty years. When Mr Santos and his wife were living in the Philippines, Mrs Damakas lived next door to them and was often in their house taking care of their five children. Mrs Damakas has two adopted children from her first marriage. Before coming to Australia, she used to have a stall in the marketplace. Mr Santos said Mrs Damakas is a good and very helpful person. On Mrs Damakas' first visit to Australia when she was staying with Mr and Mrs Santos, they introduced her to Mr Damakas who "fell for her" and started to visit Mrs Damakas at their house. Mr Damakas took her on visits around the City, for example to Manly, and they all ate together on a regular basis.
On her second visit to Australia, Mrs Damakas was hoping to be able to stay in Australia because of her love for and her relationship with Mr Damakas. Mr Santos remembered that Mrs Damakas' son was also here at that time, but he did not say anything to Mr Santos about problems he was having in the Philippines. Mr Santos could also not recall any conversation between his own son and Mrs Damakas about her staying in Australia. He said this could have happened and he might not be aware of it. Mr Santos said Mr and Mrs Damakas have now been separated for three and a half years and Mrs Damakas prays that she should be allowed to come to Australia. Mr and Mrs Damakas call each other on the phone and he sends her money. She sends him things from the Philippines whenever any body in the family comes to Australia. They are both lonely.
Juanita Santos
Mrs Santos said her younger sister is a kind person – true, honest and a believer in God. Mrs Santos speaks to her sister all the time, as well as writing letters. They have a close, loving relationship and have written to each other for many years. Mrs Damakas is also very understanding of others. When she first came to visit them in Australia in 1994, Mrs Damakas wanted, in particular, to see the Santos' children whom she had looked after in the Philippines when they were small. It was on Mrs Damakas' second visit to Australia that she met Mr Damakas at Bankstown Markets, probably in early 1997. A best friend of Mr Damakas introduced him to her sister. From then onwards, they developed an understanding and started talking about their getting together. Finally, they were married.
Mrs Santos agreed that it was on Mrs Damakas' second visit to Australia that she told Mrs Santos that she would like to stay here. Mrs Damakas' son was also here at that time, but Mrs Santos could not recall him saying anything about problems he was having in the Philippines. Mrs Santos said she was not aware that her son had talked with her sister about her visa.
SUBMISSIONS
RespondentMr Allatt, for the Respondent, said Mr and Mrs. Damakas' poor memory makes it difficult to discern dates, events and other evidence. He commented that this is surprising given the importance of this matter to the parties. Mr Allatt noted that Mrs Damakas had acknowledged that in planning her second visit to Australia in 1996, she wanted to stay permanently. Her application for a protection visa was lodged on 12 December 1996, very near the end of her three month visitor visa. The evidence suggests that either Mrs Damakas' solicitor or her son made up the story in the protection visa application. However, whoever made up the story, there is not a grain of truth in it, and Mr and Mrs Santos' evidence is that Mrs Damakas' son made no mention of any difficulty he was having in the Philippines when he was staying in Australia. Mr Allatt submitted that Mrs Damakas' evidence about her son should be discounted as a result of this. The protection visa application was purely a device to achieve Mrs Damakas' goal of staying permanently in Australia, and the pursuit of her application to the RRT and her requests for ministerial intervention were soley for this purpose. While Mrs Damakas says she has no understanding of a protection visa application and what it is to be a refugee, the Respondent contends that Mrs Damakas was prepared to use any device open to her which enabled her to remain in Australia. At her interview with the senior migration officer at the Australian Embassy in Manilla, Mrs Damakas acknowledged that she knew the protection visa application was false.
With regard to Mrs Damakas' application for a visitor visa in June 2000 (T48), Mr Allatt noted that while Mrs Damakas denied filling in the application form, she did sign it. In the form, she did not reveal her true name and that she was someone with a current spouse visa application, and she did not disclose that her husband and sister were in Australia. Mr Allatt noted that Mrs Damakas did not use her married name for over two years after she returned to the Philippines in 1998. He submitted that Mr and Mrs Damakas' marriage came about as a result of Mrs Damakas' desire to stay in Australia permanently and Mr Damakas' desire for a housekeeper, although Mr Allatt acknowledged that their relationship may well have developed into a loving one.
Mr Allatt said the Respondent submits that Mrs Damakas has committed serious breaches of Australia's immigration law with the consequence that she does not pass the character test. With regard to the exercise to the Minister's under s 501(1) of the Act and the guidance afforded by Direction No. 21, Mr Allatt said, with regard to the first of the primary considerations to which decision-makers are referred, that Mrs Damakas' conduct in pursuing a false protection visa claim and failing to provide the relevant information in her visitor visa application in June 2000, should be regarded as very serious matters.
With regard to general deterrence, Mr Allatt referred to the Tribunal's decision in ReMay and the Minister for Immigration and Multicultural Affairs [2000] AATA 480 where Deputy President Chappell said at para 84;
The Australian community has every reason to send a very strong 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 an ambitions of becoming residents of this country
Mr Allatt said the immigration history in this matter suggests that Mrs Damakas may also be prepared to repeat her immigration misconduct. While lying may be endemic in the culture of the Philippines, lying is not acceptable to the Australian community and, with regard to the second of the primary considerations, the Expectations of the Australian Community, the Australian community would expect that an applicant in such a situation should not be granted a visa.
With regard to Other Considerations to which decision-makers are referred by paragraph 2.17 of Direction No. 21, Mr Allatt reiterated his comments about the practical reasons for the marriage being entered into. Nevertheless, he acknowledged that the marriage has been assessed as genuine by the MRT. However, Mr Damakas was clearly aware before the marriage of his wife's immigration status and of her protection visa claims. Mr Allatt also acknowledged that refusal of a visa to Mrs Damakas would cause some loss and hardship to the parties. With regard to the composition of Mrs Damakas' family, Mr Allatt noted that apart from Mr Damakas and Mrs Damakas' sister and family in Australia, all her other direct family members are in the Philippines. With regard to evidence of rehabilitation and recent good conduct, while the T documents contain references as to Mrs Damakas' good character, and Mr and Mrs Santos gave oral evidence of this at the hearing, nevertheless, Mr Allatt contended that there is no compelling evidence of rehabilitation or recent good conduct which outweighs the factors favouring a refusal of a visa. In summary, Mr Allatt submitted that the discretion should not be exercised in Mrs Damakas' favour. The primary considerations of the Protection and Expectations of the Australian Community outweigh the Other Considerations.
ApplicantMr Morris, for the Applicant, said that both Mr and Mrs Damakas suffer from poor memory and have difficulty remembering things from one week to another. Mrs Damakas was advised to make a protection visa application and, being the simple person she is, she relied on that advice to enable her to stay in Australia. The Applicant's son, who also made a protection visa application at the same time, is in business in the Philippines and runs an entertainment studio exporting singers and dancers to Japan. Like many business people in the Philippines, he is subject to threats. Nevertheless, he has a comfortable home and Mrs Damakas lives with him.
Mr Morris said Mrs Damakas does not set out to lie deliberately. She signed all the visa applications, but someone else filled out the forms for her and she accepted their advice. She did not really understand what she was doing. With regard to her June 2000 application for a visitor visa, Mr Morris noted that this had been filled out in the name stated in her passport. He said she would have given her passport to the migration agent, who would have completed the application form with the details stated in the passport. The passport still showed her name as being Villanueva. It was not until August 2000, when Mr Morris pointed out to her that she should use her married name, that she began doing so. Mr Morris said her continued use of the name Villanueva was purely a reflection of her naivety.
Mr Morris said that Mr and Mrs Damakas have a genuine marriage and love each other. She is a good person, as the character references attest. Mrs Damakas will be of benefit to the Australian community in so far as she will support her husband and members of her sister's family. She is certainly no risk to the Australian community. She wants to be with her husband. The health of both Mr and Mrs Damakas is currently suffering as a result. Mr Damakas is on medication which he would not be able to obtain in the Philippines. Whilst he could go there for a holiday, he would not be in a position to live there.
APPLICATION OF THE LAWAs stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mrs Damakas passes the "character test" having regard to her past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mrs Damakas does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, made a false or misleading statement (paragraph 1.9 (b)), or has ever made a false or misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9 (c)).
Mrs Damakas admitted that the story contained in her protection visa application was made up by her son and false. She stated that she did not know what she was signing and was not aware that what she signed was a legal document. The Tribunal accepts that she relied on the advice of others, but it is clear that her intention was to try and remain permanently in Australia and, in the Tribunal's view, she was prepared to use a protection visa application as a means to achieve this end. The application to the RRT and the two requests for ministerial intervention, while Mrs Damakas seemed to have no knowledge or memory of these, were, nevertheless, a device to enable her to stay longer in Australia. In the Tribunal's view, she must have been aware that these applications were based upon a false story, even if she was unfamiliar with Australia's immigration system and the laws on which that system is based. Her conduct should not be excused by claims of ignorance or lack of memory of these events. The Tribunal notes the comments made by Deputy President McMahon in Re Lachmaiya and the Department of Immigration and Multicultural Affairs (1994) 19 AAR 148 at paragraph 35:
The observance of truth in dealing officials in migration matters (particularly where the truth is known only to the person making this statement) is a fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia
Thus, Mrs Damakas made a false and misleading statement in connection with her application for the grant of a protection visa and the Tribunal is satisfied that this is sufficient ground for a determination that she does not pass the character test by reason of her past and present general conduct, pursuant to s 501(6)(c)(ii) of the Act. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mrs Damakas.
In exercising this discretion, the Tribunal had regard to Part 2 of Direction No. 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
With regard to the Protection of the Australian Community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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).
Examples of offences considered by the Government to be serious include serious crimes against the Migration Act 1958, which in turn include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".
With regard to this first primary consideration, the Tribunal has found that Mrs Damakas made a false or misleading statement in connection with her protection visa application. The Respondent also contends that she made a false or misleading statement in her application for a visitor visa lodged on 21 June 2000 (T48). The Tribunal accepts Mrs Damakas' evidence that this application was made with the assistance of her son and a migration agent in Manilla. The application fails to state the family name/surname acquired on her marriage to Mr Damakas. Instead, it states her family surname as Villanueva and makes no reference to her application for a spouse visa. Question 17 in the form asks: "Do you have any relatives, friends or contacts you will visit in Australia?" The answer given to this question was "None". Thus, no mention was made of Mrs Damakas' sister and family, nor of her husband. The Tribunal accepts that if, as seems likely, the application was completed by a migration agent at the request of Mrs Damakas' son, and if the migration agent was using Mrs Damakas' passport which pre-dated her marriage to Mr Damakas, then the agent may have been unaware of some of the information which should have been included on the form. Thus, in the Tribunal's view, there may have been no intention to mislead, although there was a responsibility on Mrs Damakas' part to check that the information contained in the application was correct, so that she could complete the declaration at Question 29 declaring that "the information on this form is complete and correct".
The Tribunal recognises that Mrs Damakas' misconduct is of a serious nature. While the Tribunal accepts that Mrs Damakas has relied on the advice of others in pursuing her visa applications, nevertheless, the Tribunal is not satisfied that she has a simple mentality and doubts that she could be considered naïve. Certainly, she may have little knowledge of Australia's immigration system, but such claims and that of a poor memory can prove convenient in seeking to avoid the consequences of one's actions. The Tribunal notes that Mrs Damakas lives with her son in Manilla in a comfortable home, and that her son is in business exporting singers and dancers to Japan. Presumably, therefore, he has some knowledge of immigration systems.
The Tribunal concludes that while Mrs Damakas may not have had any criminal intent, nevertheless, she attempted to misuse Australia's immigration system to promote her own benefit. Knowing that her conduct was wrong, a breach of Australia's laws and not acceptable in the Australian community, the Tribunal considers that there is likelihood of Mrs Damakas repeating her misconduct. Nevertheless, the Tribunal recognises that the refusal of a visa to persons who engage in immigration misconduct is a deterrent, and a clear message that such conduct is not acceptable in Australia. The Tribunal agrees with the view expressed by Deputy President Chappell in May (supra) quoted above.
The second primary consideration is the Expectations of the Australian Community. Paragraph 2.12 states that there is an expectation that non-citizens should obey Australian laws while in Australia. Where a non-citizen has breached this trust, it may be appropriate to refuse the visa application. In the Tribunal's view, Mrs Damakas did breach this trust in her preparedness to misuse Australia's immigration system to promote her own benefit.
The third of the primary considerations, the Best Interests of the Child, is not relevant here. However, the Tribunal must consider the Other Considerations to which decision-makers are directed by paragraph 2.17 of Direction No. 21. These Other Considerations include: the extent of disruption that the refusal or cancellation would cause to the non-citizen's family; the non-citizen's business and other ties to the Australian Community; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen's family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
The MRT has found that the spousal relationship between Mr and Mrs Damakas is a genuine one. The Tribunal is of the same view, although notes that the relationship may have been borne out of convenience to both parties: the convenience to Mr Damakas of having a housekeeper and to Mrs Damakas of being able to remain permanently in Australia near her sister and family. Nevertheless, the Tribunal accepts that both parties are suffering hardship as a result of their ongoing separation. The Tribunal notes, however, that Mr Damakas was aware of problems with his wife's immigration status at the time that they got married. The Tribunal finds that Mrs Damakas' children and their families live in the Philippines. However, her sister and family, to whom she is clearly very close, live in Sydney as, of course, does her husband.
With regard to other aspects of Mrs Damakas' character, the Tribunal notes Mr Morris' evidence that she is a good person and the large number of references as to her good conduct tendered by Mr Morris (A4).
The Tribunal notes that paragraph 2.17 of Direction No. 21 states, referring to Other Considerations, that where relevant, "it is appropriate these matters be taken into account but generally they be given less individual weight than that given to the primary considerations". In Mrs Damakas' case, while the Tribunal considers that this 64 year old woman is of no real threat to the Australian community, the Tribunal considers that the serious nature of her misconduct, the importance of deterrence and the expectations of the Australian community outweigh the hardship that will be caused to Mr and Mrs Damakas by the refusal of the grant of a visa. The Tribunal therefore concludes that the discretion in s 501(1) of the Act should not be exercised in her favour. Thus, the Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed: .....................................................................................
AssociateDate/s of Hearing 8 April and 9 April 2002
Date of Decision 16 May 2002
Representative for the Applicant Mr J Morris
Representative for the Respondent Mr M Allatt, Solicitor
0
4
0