Fenech-Soler and Minister for Immigration and Multicultural and I Ndigenous Affairs

[2003] AATA 806

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 806

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos N2002/101 and 104

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOSEPH FENECH-SOLER

Visa applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date15 August 2003

PlaceSydney

Decision The Tribunal affirms each decision under review.

[The Hon C R Wright QC)

Deputy President

CATCHWORDS

Immigration - spouse visa application - character test - false and misleading conduct in making protection visa application - application to RRT - application for childrens' "visitor" visas and in evidence to the AAT - discretion - hardship to visa applicant and husband in enforced separation.

Migration Act 1958 - s501

Irving v Minister  for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

REASONS FOR DECISION

15 August 2003 The Hon C R Wright QC., (Deputy President)  

The Application

1.      Elvira Castro Fenech-Soler (the visa applicant) aged 43 years and her daughter Girlie aged 22 years applied for a Combined Class 4F Subclass 309 Spouse (Provisional) and Class BC Subclass 100 spouse migrant visa.   Both applications were refused on 4 November 2001.

2.      The review applicant Joseph Fenech-Soler, the husband of the visa  applicant lodged an application to extend time for seeking review of these decisions on 25 January 2002.   The applications were not opposed and were apparently granted in due course.

3.      The applications for review were heard in Sydney on 1 July 2003.   The visa applicant and Girlie were represented by the review applicant and the respondent was represented by Ms E Warner of the Australian Government Solicitors office.   A number of items of documentary evidence were received from both parties, and the visa applicant gave oral evidence by telephone link from the Philippines, with the assistance of an approved interpreter.   The review applicant declined to give oral evidence, but several of the written documents contained his first hand account of relevant events, and, as his evidence in this form was not materially challenged, I have accepted his evidence, other than material which is obviously hearsay or comment upon the credibility of others (in particular his wife).

4.      Girlie did not give evidence and it became clear early in the proceeding that her secondary visa application, based on her dependency on the visa applicant could not succeed in view of her age and present circumstances.    Although not formally abandoned by the review applicant, the primary decision-maker’s determination should not be disturbed and will accordingly be affirmed in respect of Girlie. (Application No N2002/104)

Background

5.      The visa  applicant was born in the Philippines on 5 October 1959.   She is a Filipino citizen.   In 1978 she was married in the Philippines to Elmer Castro, by whom she had 2 children, Cristina (born 1980) and Girlie (born 8 December 1982).

6.      Elmer Castro travelled to Australia on a short stay visitor visa in 1988.   He overstayed his visa and remained here illegally for several years.   He eventually departed in August 2000.

7.      The visa applicant applied for a visitor visa for Australia in Manila in November 1991.   As records for that period are incomplete, it is not known what she declared in her application nor whether she declared that her husband was in Australia illegally.    She was granted the visitor visa and travelled to Australia on 16 November 1991 with an authorised stay of three months.   When she travelled to Australia, the visa applicant left her two children, then 11 and 9, in the care of her parents in the Philippines.

8.      The visa applicant applied for a protection visa in Australia on 13 February 1992.   She claimed that she was in fear of returning to the Philippines as she and her family were on the “hit list” of the New People’s Army (NPA) in the Philippines, following NPA occupation of their family home after the village was evacuated as a consequence of the eruption of Mt Pinatubo.   She also claimed there had been threats to the family after they retaliated against the NPA, including the visa applicant’s father shooting and killing an NPA member.    The visa applicant was requested to attend an interview in relation to that application, but twice failed to attend.   Notes on file indicate she first failed to attend because she was “scared” of attending for interview, and on the second occasion, provided a doctor certificate stating she had chicken pox.   The application for the protection visa was refused on 29 November 1994.

9.      The visa applicant lodged an application for review with the Refugee Review Tribunal on 7 December 1994.   She gave evidence at the hearing.   The Tribunal affirmed the earlier decision to refuse the protection visa, on 31 May 1996.   The Tribunal’s reasons for the decision indicate that the visa applicant’s account of the alleged threats and problems in the Philippines was in “direct contrast” to her original claims in her protection visa application, and the Tribunal found her to be “vague and evasive”, and rejected the truthfulness of her claims, other than the generalities.

10.     The visa applicant then sought Ministerial intervention under s417 of the Act.   These requests were finally determined adversely to the visa applicant on 7 October 1997.

11.     The visa applicant joined the Lie Class Action in the Federal Court.

12.     In May 1995 the visa applicant organised her relatives in the Philippines to have her two daughters sent to Australia on visitor visas.    The visa applicant and her relatives failed to reveal that she (the visa applicant) and Elmer Castro (the girls’ father) were in Australia, but instead, falsely indicated that the children were going to visit other relatives.   The two girls departed Australia before their visitor visas expired.

13.     The visa applicant’s two daughters again returned to Australia on further visitor visas, again organised by relatives on behalf of the visa applicant.   Again, it was not revealed that the two girls’ parents were in Australia at the time they applied.   As a result, the two girls were granted visitor visas allowing a stay of three months..   They travelled to Australia, overstayed, and did not depart until 24 March 2001 (the younger child Girlie) and 17 June 1999 (the elder child Cristina).     While in Australia, the visa applicant enrolled her two daughters in school and they received free education, with the daughter Cristina graduating from high school.

14.     The visa applicant was granted permission to work and was issued with bridging visas as a result of her above applications and enrolling in the class action.   While in Australia, the visa applicant worked for the majority of the time.

15.     On 9 September 1997, the visa applicant met the review applicant, an Australian citizen and on 15 January 2000 they were married.   On 29 march 2001 she lodged her spouse visa application sponsored by her husband.

16.     The visa applicant departed Australia on 24 March 2001.    The visa applicant and sponsor were interviewed separately in respect of the current application on 15 May 2001 and the visa applicant was re-interviewed on 18 May 2001.   Apart from other inconsistencies, the visa applicant stated at this interview that she did not really know the details of her protection claims.   The visa applicant was again interviewed, this time in a tape-recorded interview, on 25 September 2001. (See Exhibit “Q”).

17.     At her interviews, the visa applicant indicated that she and Elmer Castro were still married at the time she travelled to Australia in 1991, leaving the two children behind with her parents.   She stated that after she arrived in Australia, she found that Elmer “had another woman”, but they persevered with the relationship and lived together intermittently until 1996, at which time they separated.   According to the visa applicant, she met the review applicant, Mr Fenech-Soler, in 1997 and commenced a relationship in February 1998, began living together in about October 1999 and then married in Australia in January 2000.  She also stated that in 1995 she had arranged for her relatives to obtain visitor visas for her two children, so they could come and join her in Australia and “have a good future”.   She organised their schooling in Australia.

18.     The visa applicant was also asked questions about her reasons for going to Australia and applying for a protection visa and associated reviews.   She said she had gone to Australia to see her husband Elmer Castro who had been there since 1988.   She maintained that her claims for protection were all true, but had difficulty recalling what claims she had made in her application and gave inconsistent and vague answers, as she had done with the Refugee Review Tribunal according to the Tribunal’s decision record and assessment referred to earlier.   The visa applicant gave a number of generalities but did not recall many of the specific claims she had made for protection in her original protection visa application, for example, that her father had allegedly killed an NPA member.

19.     The visa applicant also did not know what the acronym “NPA” stood for, although she claimed that this organisation was the cause of her fear of returning to Philippines.   During the tape-recorded interview, the visa applicant gave inconsistent accounts of her protection visa claims, as she had also done with the Refugee Review Tribunal according to the Tribunal’s decision record.   It was also established that the visa applicant’s reasons for seeking protection and review were based primarily on a desire to improve her socio-economic circumstances and those of her children, rather than because of a genuine need for protection.   She stated she had heard about protection visas from Filipino friends in Australia and applied with the assistance of migration agent Robert Bock, who was a friend of her then husband Elmer Castro.

20.     The visa applicant claimed that Mr Bock wrote the protection visa claims.   However, at the Refugee Review Tribunal she stated that she had given the information to Mr Bock and read the information before signing it.    The visa applicant stated at interview in September 2001 that the reason she sought Ministerial intervention and joined the Lie Class Action was because she had no house to live in in the Philippines and no work in the Philippines and because she wanted to stay in Australia “because they treat you well”..   The visa applicant did not know what a class action was or what it related to, but said she joined because she was scared to return to the Philippines as she was very poor and had no work to come back to.”

21.     In Exhibit “P”, tendered at the AAT hearing on 1 July 2003, the visa  applicant referred to and attempted to explain many of the statements, which she made during the refugee hearings, and at subsequent interviews.   She attributed any “mistakes”, “errors” or “inconsistent testimonies” to her “insufficient knowledge, education and my trust to other persons who I asked for help”..   This last reference appears to be to the story contained in her original protection visa application, which she claimed was fabricated in essential respects by her migration agent.

22.     The visa applicant was closely questioned by the respondent’s legal representative.   Within the first few minutes of cross-examination she unequivocally agreed that in February 1992 she had applied for a protection visa, that all her claims were untrue and that she had made the claims because she wanted to stay in Australia due to her lifelong ambition to overcome poverty.  Shortly thereafter she appeared to retract this admission and said she went to her migration agent for help and did not know claims being made on her behalf were false.    She then said the refugee application was truthful.   This statement was then qualified and she said that “some” of the facts in the application were truthful.

23.     The visa applicant was taken sentence by sentence through the written protection visa application (see Exhibit “A” p.66).   She said that this was in the handwriting of her migration agent.    During the course of this process she admitted that most of the material contained in that statement was untrue.   It clearly emerged that the visa applicant was present while the statement was compiled and that she was aware that a fabricated story was being concocted on her behalf.   She said (inter alia) “I knew the story submitted tot he Department in 1992 was false” and “I knew they were making up a false story for me also”.   “When I signed the visa application in 1992 I knew I was signing a story which was not true”..     She also admitted that when she gave evidence to the Refugee Review Tribunal that the lies she told in her application for a visa were not true.

24.     This visa applicant was also questioned as to the role she played in bringing her two children to Australia.    She agreed that she had arranged for the children to visit in 1995 and again in 1996.   She said she knew a visitor visa was a short-term permit and she admitted that she wanted the children to come to Australia so they could be educated here.

25.     She was questioned on a number of other issues as well, but what I have reproduced above sufficiently illustrates her substantial and direct complicity in providing false and misleading information to the Department and the Refugee Review Tribunal.   An equally important conclusion however is that she lied and prevaricated during the course of the hearing before the present Tribunal.   Indeed I would go so far as to say that I have seldom encountered a more unsatisfactory witness.

Issues

A        Character

26. The visa applicant’s spouse visa application was rejected at Departmental level on the basis that she did not pass the character test prescribed by s501 of the Migration Act 1958, because of her past and present general conduct.

27.     In reviewing that decision, the Tribunal must have regard to the Minister’s Direction of 23 August 2001 (“Direction – Visa Refusal and Cancellation under section 501 – No 21”) issued pursuant to section 499.

28. Guidance as to the meaning and scope of the term “good character” as used in s501 is to be found in several decisions both of the Federal Court and the AAT. I refer in particular to Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 per Lee J @ 94; Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 and, of particular relevance in cases such as the present where the character concerns relate to lies and misinformation furnished in connexion with a migration application, the words of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148:

“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.    To lie consistently … is to subvert the administration and, in the context of the Act, to demonstrate that [the person] is not a person of good repute or good character.   Australia can have no confidence that [the visa  applicant] would not again transgress in matters where truth and good faith could be deceptively withheld.”  

29.     I find:

(a)That the visa applicant travelled to Australia on a visitor visa in 1991 with no intention of returning to the Philippines on or before the expiration of that visa.

(b)That the visa applicant applied for a protection visa on the basis of false and misleading claims and for reasons other than a genuine belief that she may be entitled to Australia’s protection.

(c)That the visa applicant sought review of the Departmental decision refusing the protection visa on the basis of these false and misleading claims which she fraudulently endorsed in her oral evidence before the RRT.

(d)That the visa applicant sought Ministerial intervention on the basis of the same false and misleading claims.

(e)That the visa applicant was complicit in securing visitor visas for her two daughters in 1996 on the basis of false and misleading information as to the purpose of their visit.

(f)That the visa applicant has provided false and misleading evidence to the Tribunal during the course of the present proceedings.

30.     In my opinion these are serious matters, which lead to the conclusion that, the visa applicant does not pass the character test.   She has exploited the migration and protection system for many years and has shown no genuine remorse.   Whilst I have no reason to doubt the genuineness of her marriage to the review applicant, I am left with the clear conclusion that she would say or do virtually anything to secure permanent residency in Australia.   In reaching this position, I have taken account of the testimonials provided in Exhibits “G” to “O” inclusive and Exhibit “S”.

B        Discretion

31.     The visa applicant claims to be suffering ill health.   A medical report from Jose Bacani M.D. dated 25 February 2002 (Exhibit “D”) confirms that she was, in January 2002 suffering from insomnia, stress, depression, hypertension, acid peptic disease and post menopausal syndrome.    The doctor was of the view that separation from her husband “probably contributes to her present state of health”.   The visa applicant did not elaborate upon her present condition whilst giving evidence before the Tribunal.   For present purposes I am prepared to infer that it remains about the same as described by Dr Bacani.

32.     There is also a medical report as to the health of the review applicant from the Skin and Cancer Foundation dated 9 January 2003 (Exhibit “E”).   This details the onset and treatment of dermatitis caused by an allergic reaction to handling vegetables.

33.     The review applicant is 61 years of age.   As already mentioned he did not give sworn evidence, but in the course of his final address he provided relevant material bearing upon the discretionary issues that I need to consider.   Ms Warner did not seek to challenge what he told me in this way.   He said that he has been to the Philippines a couple of times, but from the extent of the poverty he saw, he does not think he could live there.   He also said that he knew “part of the story” before he met his wife.   He said he knew he had a choice to make when he married her, but his wife lied to him and didn’t “come out in the open” until they were married.   I infer from what he said that he suspected that she was having migration difficulties before marriage, but she misled him and didn’t disclose her full involvement and mendacity until after the wedding.

34. The Minister’s Direction No 21 enjoins me to have regard to three primary and a number of secondary considerations in deciding whether or not to exercise a residual discretion to effectively waive the necessity for the visa applicant’s compliance with s501. Conduct of the kind which has led me to conclude the visa applicant is not of good character is regarded by the Minister as “very serious”. In my opinion the Australian community would hold a similar view. There is a clear necessity I think to protect the Australian community from the type of conduct employed by the visa applicant to subvert the control mechanisms, which exist to control the entry of non-citizens into this country. In my opinion the Australian community would expect such conduct to result in the exclusion of the offender from Australia.

35.     The visa applicant persisted in devious conduct over a number of years.   If she is admitted as a resident there is a clear risk of recidivism in the sense that there is a likelihood she will resort to deceitful behaviour when dealing with governmental or other agencies to achieve her desired objectives.   If the visa applicant succeeds in obtaining a spouse visa she could qualify for permanent residency after two years.  Deterrence of like minded visa fraudsters is also a reasonable aim and expectation.

36.     The third primary consideration referred to in the Minister’s Director relates to the best interests of any child of the marriage.   There are no relevant children so this issue does not arise.

37.     The Minister’s Direction also mentions other considerations.   I will deal with each of these separately (omitting those which are plainly irrelevant).

(i)The extent of disruption to the non-citizen’s family, business and other ties to the Australian community:

The visa applicant has no other relations in Australia.

(ii)Genuine marriage to Australian Citizen:

I accept that Elvira Castro does have a genuine marriage to Joseph Fenech-Soler.

(iii)The degree of hardship caused to immediate family members lawfully resident in Australia:

I accept that it is inevitable that separation will cause hardship to both the review applicant and the visa applicant.   However, despite the review  applicant’s misgivings about living in the Philippines, I do not accept that such a situation is to be rejected.   The review applicant would not have to abandon a business or profession in Australia to join his wife in the Philippines.

(iv)Family composition of the non-citizen’s family in Australia and overseas:

The visa applicant’s daughter Cristina is married to an Australian and has applied separately to reside in Australia.   All other close family members and all other family members are resident in the Philippines.

(v)Evidence of rehabilitation and recent good conduct:

There is no evidence before the Tribunal of rehabilitation or recent good conduct and the Tribunal is not aware of anything which may be suggested as constituting such bearing in mind that the visa applicant continues to make false statements in connection with her visa application.

(vi)Whether the application is for a temporary or permanent visa:

The application for a spouse visa is a temporary visa lasting for 2 years which at the expiry of that time entitles the visa applicant to the grant of a permanent visa.   Accordingly, since the grant of the temporary visa would put the visa  applicant in a position to apply for a permanent visa a very careful assessment of relevant character and discretionary issues should be undertaken.

(vii)The purpose and intended duration and of entry to or stay in Australia including any significant or compassionate circumstances:

See subparagraphs (iii) and (iv) above.

38.     In my opinion the seriousness and persistence of the visa applicant’s conduct is not outweighed by the hardship issues identified above.   In my opinion the primary decision-maker came to the correct conclusion and the residual discretion should not be exercised in the visa applicant’s favour.   The decision under review in application No N2002/101 is accordingly affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  1 July 2003
Date of Decision  15 August 2003
Representative for the Visa applicant         Review Applicant
Counsel for the Respondent     Ms E N J Warner
Solicitor for the Respondent     Australian Government Solicitor