Diacodavid and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1129
•29 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1129
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/538
GENERAL ADMINISTRATIVE DIVISION ) Re
Steve Diacodavid
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date29 October 2004
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa application – application refused on the ground that the visa applicant fails the character test – past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s immigration history – examination of the visa applicant’s stay in Australia including the visa applicant’s criminal history whilst in Australia – necessity to balance the protection and expectations of the Australian community against the hardship to the applicant and visa applicant – found that the visa applicant engaged in multiple breaches of Australia’s immigration laws, including acting with deceit, and she engaged in criminal conduct and that the visa applicant therefore does not pass the character test – the visa applicant found to be dismissive of Australia’s immigration laws leading to the possibility of the risk of recidivism – found that the applicant was fully aware of the visa applicant’s unlawful status and had encouraged her to remain in Australia unlawfully – decision under review affirmed.
MigrationAct 1958 ss 499, 501(1), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
REASONS FOR DECISION
29 October 2004 Professor GD Walker, Deputy President Summary
1. The visa applicant, Maria Clavel Diacodavid, who was born in the Philippines and is aged 45, came to Australia on 3 September 1995 on a visitor visa valid for three months. On 6 September 1995, she applied for a protection visa which was subsequently refused. Mrs Diacodavid remained in Australia as an unlawful non-citizen from 2 October 1997 until 9 January 2003 when she departed Australia. On 15 May 2003, she applied for a combined subclass 309 spouse (provisional) visa and subclass 100 spouse (migrant) visa to live in Australia with her spouse, the applicant, Steve Diacodavid.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mrs Diacodavid lodged a protection visa application based on false and misleading claims, that she remained in Australia unlawfully for five years, that she chose to remain in Australia unlawfully after being advised by DIEA that she was required to leave, she worked illegally during her stay, that she has been convicted of criminal offences while in Australia, and that she made false and misleading statements in her spouse visa application. The respondent therefore refused Mrs Diacodavid’s combined spouse and migrant visa applications. This is the decision to be reviewed by the tribunal.
Background
3. The applicant, Steve (Efstratos) Diacodavid, was born on Cos Island, Greece, on 1 September 1938 and is aged 66. He was granted Australian citizenship on 28 July 1975. On 3 April 1958, Mr Diacodavid entered into a de facto relationship with Helen Davis, which ended by mutual agreement on 4 May 1996. No children were born of the relationship. Mr Diacodavid is in receipt of age pension.
4. The visa applicant, Mrs Diacodavid, was born in Lipa City, Philippines, on 18 November 1959 and is aged 45. She is a citizen of the Philippines. On 3 September 1995, Mrs Diacodavid arrived in Australia on a subclass TR short-stay (visitor) visa valid until 3 December 1995 granted to her on 14 August 1995 (T p143).
5. On 6 September 1995, Mrs Diacodavid (using her family name of Unite) lodged an application for a protection visa (T p116). In her application, she claimed that she had been harassed, humiliated and threatened because of her activities with the organisation, the Independent Teachers Association, and that she feared that if she returned to the Philippines “her life would be taken away” by government authorities opposed to that organisation (T pp122-123). On 6 September 1995, Mrs Diacodavid was granted a bridging visa pending the outcome of her application (T p143).
6. On 10 September 1995, Mrs Diacodavid and Mr Diacodavid met at the Sydney Town Hall Library.
7. On 13 January 1996, Mrs Diacodavid was invited to an interview by the then Department of Immigration and Ethnic Affairs (“DIEA”) on 9 February 1996. This letter was addressed to Mrs Diacodavid at the current residential address which provided to DIEA on the application form (T p147). By facsimile dated 8 February 1996, Davidson James & Associates advised DIEA that it had that day been appointed as migration agent for Mrs Diacodavid and that she did not wish to attend the departmental interview (T pp152-154). On 10 February 1996, a case officer of DIEA, Onshore Refugee Program refused Mrs Diacodavid’s protection visa application on the basis that DIEA was unable to locate any information about the Independent Teachers Association and that information which was available, suggested that her claims were implausible. The case officer therefore found her claim was not credible and that she did not have a subjective fear of persecution if she were to return to the Philippines (T pp155-163). On 8 March 1996, Mrs Diacodavid’s then migration agent lodged an application for review with the Refugee Review Tribunal (“RRT”) (T p165).
8. On 24 February 1997, Mrs Diacodavid and Mr Diacodavid commenced living together (T p44).
9. On 28 August 1997, the RRT affirmed the decision to refuse the grant of a protection visa to Mrs Diacodavid, stating that Mrs Diacodavid had made no effort to substantiate her very general claims (T5 p32). On 2 October 1997, Mrs Diacodavid became an unlawful non-citizen. On 15 October 1997, Mrs Diacodavid requested Ministerial intervention, which was refused on the same day (T p6).
10. On 15 November 1997, Mrs Diacodavid and Mr Diacodavid were married in a civil ceremony at the Nurragingy Reserve, Doonside, New South Wales (T p56). On 24 December 1997, Mrs Diacodavid was arrested by police in relation to the offences of not travelling with a valid rail ticket, resisting arrest and assaulting police (T p103). On the same day, she was handed over to immigration officials and detained in the Villawood Immigration Detention Centre, New South Wales (T p105). On 9 January 2003, Mrs Diacodavid departed Australia (T p115). On 17 January 2003, the charges against Mrs Diacodavid were dealt with in the Fairfield Local Court. She was convicted of resist officer in the execution of his duty, assault officer in the execution of his duty (two counts) and travel on concession ticket without authority and was fined $250 on each charge.
11. On 15 May 2003, Mrs Diacodavid lodged a combined subclass 309 spouse (provisional) visa and subclass 100 spouse (migrant) visa application at the Australian Embassy in Manila, Philippines (T6 p37). On 18 August 2003, Mrs Diacodavid was interviewed by an immigration official at the Australian Embassy (T8 p90). At that interview, she said that her former migration agent had told her to lodge the protection visa application even though she knew she was not a refugee. Mrs Diacodavid said that she did not attend the interview at the RRT because she knew she was not a refugee and it would not have helped her. She admitted that she remained in Australia illegally after telling the department in 1997 that she would be departing soon (T8 pp90-91).
12. On 2 February 2004, a senior migration officer at the Australian Embassy advised Mrs Diacodavid that she was considering refusing her visa application and inviting her to comment and provide further information concerning her intention (T10 p96). On 13 February 2004, Mrs Diacodavid made submissions on her own behalf, stating that she let herself be manipulated by her then solicitor, she admitted staying in Australia unlawfully for more than five years because she had fallen in love with the country and with her spouse, that her spouse was aware that she was in Australian unlawfully and had tried to assist her to legalise her status without having to return to the Philippines, she had worked from 1996 until 2002, she had three criminal charges for which she felt remorse, and that she apologised to Australia. She also stated that she missed Australia and her husband, with whom she wanted to be reunited (T11 p98).
13. On 5 April 2004, having considered Mrs Diacodavid’s submissions, a delegate of the respondent decided to refuse the grant of a visa to Mrs Diacodavid on the grounds that she did not pass the character test because of her past and present general conduct including that Mrs Diacodavid had overstayed in Australia, worked illegally, lodged a protection visa application for the sole purpose of prolonging her stay in Australia, and been convicted of criminal offences including assaulting a police officer (T2 p5). On 5 May 2004, Mr Diacodavid lodged an application for a review of this decision by this tribunal.
14. At the hearing, the applicant was unrepresented but assisted part of the time by his brother David Davis (Diacodavid). The respondent was represented by Ben Cramer, solicitors, of Blake Dawson Waldron, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the evidence tendered by the parties at the hearing. Oral evidence was given in person by Steve Diacodavid, David Davis (Diacodavid), Steve (Efstathios) Petratos and Pastor Federico Rontale. Mrs Diacodavid gave evidence by telephone from the Philippines.
Relevant Law and Policy
15. Under 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 is met. The relevant ground in the current matter is paragraph (c), 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:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
16. 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. That 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”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
17. 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.
Issue
18. The issue for the Tribunal to determine in this case is, therefore, whether Mrs Diacodavid is not of good character having regard to her past and present general conduct so as to be precluded from the grant of subclass 309 spouse (provisional) visa and subclass 100 spouse (migrant) visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.
Evidence
19. It was not disputed that Mrs Clavel Diacodavid arrived in Australia on 3 September 1995 with a visitor visa valid for three months. At her interview on 18 August 2003 she said that her reason for travelling to Australia was to visit relatives (T p90), although in her protection visa application she stated that she had no close relatives here (T p131). At the hearing she said that she did, however, have an “uncle” (actually a cousin once removed) who was in Australia and was applying for a visa to remain, but whether successfully or not she could not say, as she had lost contact with him. She said that she had no intention to remain when she first came, but as she lodged her protection visa application only three days after her arrival, that seems an improbable claim. It was her uncle, she said, who advised her to apply for refugee status and who recommended the migrant agent who lodged the application. At her interview on 18 August 2003 she admitted that she had never been a refugee, but in her oral evidence she at first denied that she had applied for a protection visa on false grounds, because she did not know on what grounds the agent was basing the application. Later in her oral evidence she admitted that she knew he was applying on false grounds and she knew that it was wrong, but went ahead nevertheless because “she was in a predicament”. When it was pointed out to her that she was not in any kind of predicament as she had a visa that was still valid for three months, she simply replied that she had not at first wanted to proceed with the application: “he [the solicitor] made me do it”.
20. Mrs Diacodavid did not attend an interview organised by the department for 9 February 1996 to discuss her claims (T p147). On 7 February 1996 she telephoned the Department saying that she had only just received the invitation to attend the interview because she had changed her address. Her uncle had since telephoned from her previous address to tell her about the interview arrangements. When asked for her new address, she gave a post office box number, and then provided a residential address when asked to do so, saying that she was living in an apartment. She also provided a telephone number but claimed it was not useful because it was a business number that was constantly engaged. Departmental officers called the number she had provided later that day, to be told that the number was a hotel. When the visa applicant was asked for by name, the person answering said that no one by that name was staying at the hotel (T p161). On 8 February 1996 the department received a fax from a self-styled migration agent, Abel Miranda, together with an authority indicating that the applicant was now the agent’s client (T pp152-154). The fax stated that the applicant did not wish to be interviewed on 9 February and instead asked for her case to be assessed on the information currently to hand.
21. After her protection visa application was rejected, she appealed to the RRT, but again failed to appear at the hearing before the tribunal set down for 28 August 1997 (T p32). At her interview at the embassy in Manila on 18 August 2003, she explained that she failed to attend the RRT interview because she was feeling unwell at the time, but added that she did not think the interview would assist her application because she was not a refugee (T p90). After the dismissal of her RRT appeal, she sought ministerial intervention under s 417 of the Act, and that application was in turn rejected on 15 October 1997. After the failure of the s 417 application, Mrs Diacodavid attempted to contact her solicitor to discuss her situation, but found that he had departed and could not be located. She and Mr Diacodavid then approached the department to see what could be done. They were informed that her bridging visa had expired and she could not make a further visa application while remaining in Australia. Advice from another solicitor confirmed the position. Mrs Diacodavid says she informed the department that she would soon depart voluntarily, but did not do so (T p91). After discussing the matter with Mr Diacodavid she chose to remain in Australia unlawfully: “I chose to stay because that was what Steve wanted” (T p7). She remained in Australia unlawfully until she was arrested and detained in December 2002.
22. The visa applicant has conceded that she worked unlawfully during her entire stay in Australia (T p7). At the hearing she described how she had worked as a pianist with a Filipino band during the entire period and had also been employed as a pianist at a ballet school in Rozelle: “I could not help using my talent” (T p99). She also held a number of temporary positions in banks and in a laboratory.
23. In cross-examination Mrs Diacodavid was asked about her answer to question 6 of her application for a spouse visa, dated 15 May 2003 (T p37). She had ticked the answer marked “no” in response to the question, “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?” She replied that it was not clear what the question meant, she had been granted an entry permit when she arrived on her visitor visa. When further pressed she became evasive and repeated that the question was not clear to her, and that she did not know which box to tick. “It was just a simple mistake because the question was not clear”. She had also ticked the answer “no” in response to question 67, “Have you or any other person included in this application, ever been charged with any offence that is currently awaiting legal action?” (T p45). She replied that she thought the question excluded any charges in Australia. When it was put to her that her answer was not truthful, she answered that she had misunderstood the question, and that it was a simple mistake and that there may have been some “cultural miscommunication”. She was clearly prevaricating.
24. Exhibit R2 comprised the Fairfield Local Court records relating to the criminal charges brought against Mrs Diacodavid on 24 December 2002. The fact sheet in relation to all these charges reads as follows:
About 11.50 am on Tuesday the 24th December 2002 Constable MORTIMER and Constable STURDY were patrolling the train between Granville Railway and Guildford Railway as part of their taskings that day. They were preparing to get off at Yennora Station to catch a return train.
While standing at the exit doors to the train, Constable STURDY asked an asian lady, the defendant Clavel DIACODAVID, if she had a railway ticket. The defendant has handed Constable STURDY a railway ticket from Central to Sydney Suburbs for a pension concession, $1.10. Constable STURDY has asked the defendant for her concession card, to which she indicated that she was getting off the train. The defendant, Constable STURDY and Constable MORTIMER got off the train. Constable STURDY has then proceeded to ask for the concession ticket, to which the defendant stated, after feeling her handbag, that she had left her pension card at home. Constable MORTIMER and Constable STURDY started making enquiries about the defendant’s identification, and the defendant started edging towards the exit gates. Constable MORTIMER has placed her left hand on the defendant’s right shoulder and moved her over to a bench on the platform. The defendant stated that she had left her purse at home, but Constable STURDY has sighted what appeared to be a black shiny purse in the front panel of her bag. The defendant kept inching away from the police officers, and refused to provide any name or identification as requested.
Due to her unusual and suspicious behaviour police informed the defendant that they were going to search her and her handbag. She would not consent and continually questioned police procedure, demanding a warrant, and stating that it was police harassment. The defendant would not consent to the search and Constable MORTIMER has placed the defendant under arrest.
The defendant has started to struggle and try and get away from police. Police have taken hold of her and the defendant has held onto the gate with her right hand. The defendant would not release her grip and Constable STURDY has sprayed the defendant with a one second burst of OC spray, with no effect. Another one second burst was sprayed at the defendant with little effect. During the struggle the defendant has fallen to the ground and Constable STURDY was kicked and punched by her. A handcuff was fixed to her right wrist but due to her level of resistance police have been unable to fix the other cuff. Constable MORTIMER has been kicked by the defendant a couple of times before Constable STURDY was able to place the other handcuff on the railing.
Other police arrived and ambulance attended to decontaminate the defendant and Constable MORTIMER, who copped a face full of OC in the scuffle.
The defendant was again told she was under arrest, cautioned and conveyed to Fairfield Police Station. Further enquiries revealed her correct name and details. Department of Immigration was contacted, and Constable STURDY spoke to Danny STOJIC, who confirmed that the defendant was in Australia illegally after her visa had expired in 1996. A detention warrant was issued by Department of Immigration and faxed to Fairfield Police Station.
The defendant was then charged with the matters before the court.
25. At the hearing Mrs Diacodavid admitted the truth of that account except for the allegation that she had produced a $1.10 pension concession ticket when asked for her railway ticket. She said that she had been holding a normal ticket but had lost it and that the police had then demanded to see some identification. Her explanation for the incident was that she had panicked because she did not want to produce any identity document that would show she was illegally in Australia. But her behaviour of continually questioning police procedures, demanding a warrant and alleging police harassment, and her violent struggle and assaults against the police, suggest a state of mind of defiance rather than panic. Even at the hearing she questioned the right of the police officers to touch her in the course of the arrest. She said that she was an intelligent woman, she had a degree in music and had been a music teacher for over 10 years, who did not deserve to be treated as a criminal.
26. Mr David Davis (Diacodavid), the applicant’s brother, gave evidence in her support. He said that Mrs Diacodavid had been good for his brother and that they were happy together. Most of his evidence consisted, however, of seeking to justify her conduct. Pastor Federico Rontale of the Jesus is Lord Church at Blacktown (Exhibit A2), said that he had known the visa applicant for over 12 months and that she was a sincere Christian with a strong commitment to the church. He thought she was a person of good character who was coming closer to God. “She’s getting there, and she is committed to the marriage. She is not perfect but is trying her best”. Pastor Rontale was not familiar with her legal situation but had heard about her detention at Villawood and understood that “she had been overextended in Australia. That’s all I know”. Mr Steve (Efstathios) Petratos, who has known Mr Diacodavid for approximately 32 years, said he had never observed anything wrong with the visa applicant’s character. She was a normal person, educated and gave the impression of good character. She and Mr Diacodavid were happily married and had a peaceful household.
Evidence Relevant to the Discretion
27. The applicant, Mr Steve Diacodavid, confirmed that he had met Mrs Diacodavid a week after she arrived in Australia. She was well educated, from a respectable family in the Philippines, her brother being a professor of economics at De La Salle University, and her sister a professional musician on television. He had lived with the visa applicant for six or seven months before marrying her in November 1997, eight months after they originally met. In his examination-in-chief he said that he did not know at the time of the marriage that she was unlawfully in Australia, but under cross-examination admitted that at the time they were married he knew her protection visa had been finally refused by the department and the RRT. He sought to explain this contradiction by saying that he was confused and could not remember accurately because he has two blocked arteries. When it was put to him that it was obvious that if the protection visa had been refused, he must have known that she might not be able to stay in Australia, he avoided answering and the question was repeated. He then replied in the negative, saying that he thought she would be with him all the time. When asked about his wife’s statement that in 1997 he went to the department to see what could be done about getting her a visa, he replied that he did not recall, but he probably did, but he had a bad memory. He also said he could not remember being told that she would have to return to the Philippines in order to apply for a new visa.
28. He had been aware that she was working unlawfully and said that she had paid for virtually all the furniture and furnishings for their apartment.
29. In 2003 he had spent three months in the Philippines, partly in order to help her with the preparation of the spouse visa application. He had not encountered any difficulty in obtaining a visa to enter the Philippines and did not indicate that he could expect any trouble in the future in that regard. He knew of no legal reason why he could not relocate to the Philippines, but said that the climates were different, and he had found it very hot, perhaps because he was there during their summer. He also thought medical treatment might be expensive and said there was a good deal of pollution.
Application of the Law and Findings of Fact
30. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Mrs Diacodavid 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…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
31. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Mrs Diacodavid does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
32. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 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(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or 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)).
33. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
34. Before making a decision on whether Mrs Diacodavid passes the character test, it is appropriate to set out my findings of fact on that issue. In relation to her past and general conduct, I find that the visa applicant engaged in multiple breaches of immigration law, in that she lodged a protection visa application based on false and misleading claims, she provided false and misleading information in connection with her application for a spouse visa and earlier in connection with her application for a visitor visa, in each instance in breach of s 234 of the Act, she worked in Australia without permission in breach of s 235 of the Act and she remained unlawfully in Australia after the expiration of her bridging visa and left the country only after she had been arrested. She has engaged in criminal conduct in Australia, having been convicted on 17 January 2003 of resisting an officer in the execution of duty, assaulting an officer in the execution of duty (two counts) and travelling on a concession ticket without authority. These convictions all arose out of the incident at Yennora railway station on 24 December 2002. By itself, the offence of travelling on a concession ticket without authority, as a first offence, might well have resulted in a conditional discharge under s 556A of the Crimes Act rather than in a conviction, but by her violent defiance she turned the episode into a major clash with the law. She appears to have no other convictions in Australia or the Philippines.
35. Although she has apologised for the Yennora offences, it is not clear that she has undergone any real change of attitude. In oral evidence she attributed her wrongdoing to her being naïve and “not intelligent enough”. Mrs Diacodavid and Mr Diacodavid both said in oral evidence that Mrs Diacodavid is an intelligent woman, her academic attainments show that she is of well above average intelligence and her conduct shows anything but naiveté. She still attempts to justify her violent belligerence at Yennora station and portrays herself as the victim because her wrists were injured by the handcuffs as she struggled to escape. She appears to regard her violations of the Migration Act as being of no consequence: “I don’t understand”, she said in oral evidence, “why the embassy is not helping us just because I breached immigration law”.
36. At the hearing her evidence was less than candid, especially concerning the false or misleading statements she made in connection with her spouse visa application. She prevaricated and pretended not to understand the meaning of perfectly clear questions printed on the form.
37. As against that, the character evidence in her favour shows that she makes a favourable impression in her private dealings and runs a harmonious and pleasant household. The applicant’s attachment to her is strong and he argues that he would not have spent seven years of his life with someone who was not of good character. “Anyone of good character can breach immigration law”, he argued. That proposition cannot, of course, be accepted. Pastor Rontale spoke favourably of her contribution to his church fellowship but admitted he had no detailed knowledge of her legal problems. Despite this evidence of her good characteristics, the gravity and repetitive nature of her Migration Act breaches, together with her criminal convictions, lead to the conclusion that she does not pass the character test.
38. Having decided that Mrs Diacodavid does not pass the character test, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to her. In exercising this discretion, the tribunal must have 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.
39. 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.
Paragraph 2.4 explains:
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.
40. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
41. With regard to paragraph 2.5(b), likelihood that the 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 similar offence”.
42. As regards the first primary consideration, the seriousness and nature of the conduct, it is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. I find that the visa applicant’s breaches of the Migration Act individually, and especially as they have accumulated over a long period, are very serious. The visa applicant attributes her wrongdoing to her lack of sufficient intelligence and her naiveté, but she is a university graduate. If she was naïve, it was only in thinking that she could infringe the Commonwealth’s migration law over a long period with impunity. There is no real evidence of reform – she still views herself as the injured party and speaks dismissively of migration law, suggesting that the Australian Embassy should be more helpful towards her despite her major breaches of immigration law. In her oral evidence she was at times evasive and less than honest. These circumstances raise the possibility of recidivism. She appears to be a person who believes that the law should not stand in the way of her personal priorities and might be expected to take liberties with it in the future if she thinks she can benefit thereby.
43. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 Paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. The award of the visas sought in this case would send the wrong message to any other persons in the Philippines or elsewhere who might share Mrs Diacodavid’s belief that Australia’s migration laws can be circumvented by means of deceit and bluff.
44. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
45. In my view the community expects that the migration program will be administered in a just and humane manner. In a situation where the number of visas available to prospective immigrants is necessarily limited, that implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction. In this case I believe the community would expect that in light of Mrs Diacodavid’s multiple and long-term breaches of the law, and her unregenerate attitude towards them, a visa would not be granted.
46. The third primary consideration, the best interests of the child, is not relevant to this matter.
47. With regard to the other considerations to which a decision-maker is directed by Direction No 21, Paragraph 2.17 states that, where relevant, “it is appropriate 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 include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; 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.
48. Apart from Mr Diacodavid, the visa applicant has no family or business connections in Australia that would be disrupted if a visa were refused. Mr Diacodavid’s family are in Australia and he has a network of friends here. The respondent concedes that the marriage between the visa applicant and Mr Diacodavid is genuine, but contends that he was fully aware of her illegal status when they were married and indeed encouraged her to remain for four more years until she was arrested and removed back to the Philippines. In her letter of 13 February 2004 to senior migration officer Gaye Lalor at the Australian Embassy, Mrs Diacodavid wrote, “During the time that we were married, my husband was aware of my illegal residency status and he tried to help me secure permanent residency by approaching the DIMIA and asking them if there was a way to change my status and not go back to Philippines for reapplication. However, one DIMIA officer said that I still have to go back home. I chose to stay because that was what Steve wanted. This occurred in 1997” (T p98-99).
49. At the hearing Mr Diacodavid said at first that he did not know of his wife’s illegal status at the time they were married and that she decided to stay in Australia illegally. He later retracted that statement and admitted that he had known, saying that he was confused because he has two blocked arteries. He also said that he could not remember going to DIEA in the way described by his wife, and also denied being told that she would have to return to the Philippines in order to reapply. Nevertheless, I am satisfied he was fully aware of her position at the time of the marriage and that he actively encouraged her to remain unlawfully in Australia.
50. The marriage is genuine. Both parties describe it as “more of a companionship filled with love” (T pp53, 70). Mr Diacodavid would suffer emotional hardship if he could not be reunited with his wife, but on the other hand it is plain that he actively encouraged her in her breaches of the Act from about November 1997 onwards and was fully aware of her status at the time of the marriage. It was his genuine devotion to Mrs Diacodavid that motivated his unscrupulous behaviour, including the obvious prevarications in his sworn evidence at the hearing, but the fact remains that he is to a considerable extent the author of his present predicament. There appears to be no legal reason why he could not join Mrs Diacodavid in the Philippines. As he is retired and living on a pension he has no employment or business that would be disrupted by such a move, and although he would prefer to live in Australia, he has spent three months in the Philippines in recent times and could adapt to life there without undue difficulty.
51. On weighing the primary and other considerations, I find that the other considerations do not outweigh the primary considerations of community protection and expectations. The decision under review should be affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 18 and 19 October 2004
Date of Decision 29 October 2004
Representative for the Applicant Self-representedRepresentative for the Respondent Mr B Cramer, Blake Dawson Waldron, Solicitors
1
3
0