Fernandez and Minister for Immigration and Multicultural Affairs

[2000] AATA 470

DECISION AND REASONS FOR DECISION [2000] AATA 470

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q99/1326

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      MYLENE FERNANDEZ    
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date22 May 2000

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent Minister with the direction that the application by the visa applicant, EDGARDO FERNANDEZ, which led to this appeal process, be granted.

(Sgd)     DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa refusal – contravention of immigration laws – role of migration agents in the contravention – clear evidence of good character – ties to Australia – hardship to wife and unborn child.
Migration Act 1958 s 501

REASONS FOR DECISION

22 May 2000           Deputy President DP Breen, Presidential Member                  

1. This is a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs dated 9 December 1999 to refuse the visa applicant, Edgardo Fernandez, a Sub Class 309 (Spouse) Visa.  The appeal was brought by Mrs Mylene Fernandez, the applicant's wife.

2. This matter was heard by me in Ballina on 18 May 2000 and continued in Brisbane on 22 May 2000.  Mrs Fernandez was represented by her stepfather, Mr K Eggins and the respondent Minister was represented by Mr E Howell of the Australian Government Solicitor's Office.

3. Oral evidence was given by the applicant, the visa applicant, Mr Eggins, family members and friends.  The following documents were taken into evidence.

• Exhibit 1            "T" Documents

• Exhibit 2            Statement and Curriculum Vitae of Edgardo Fernandez

• Exhibit 3            Police Clearance

• Exhibit 4            Statement of Mrs Filomena C Buhain, Elementary School   Principal dated 13.4.00

• Exhibit 5            Statement of Elmer C Bantog, Police Chief Inspector dated  16.4.00

• Exhibit 6            Statement of Babylita G Evangelista, Municipal Social Welfare   Officer dated 12.4.00

• Exhibit 7            Statement of Father A Medina dated 13.4.00

• Exhibit 8            Statement of Manuel C Santos Jr, Municipal Mayor dated  11.4.00

• Exhibit 9            Statement of Monsignor Romeo T Banaban, Parish Priest dated   11.4.00

• Exhibit 10          Letter from Dr Bevan Gilchrist dated 10.5.00

• Exhibit 11          Statement of Florentino C Bantog, Barangay Captain dated   14.4.00

• Exhibit 12          Statement of Benjamin L Guintu, Provincial Director dated   10.4.00

• Exhibit 13          Letter from Messrs Belen Oag, Solicitors and Attorneys dated   31.7.98

• Exhibit 14          Statement of Mylene Fernandez dated 18.5.00

1. Mr Fernandez's visa was refused on the ground that he was not of good character because of his previous infringements of Australia's migration laws under Section 501 of the Migration Act 1958.  Mr Fernandez had arrived on a three month visitor's visa in October 1997.  He asked his aunt if there was a way he could work while he was here.  He was put in touch with a solicitor in Sydney and he signed the documents given to him.  He noticed that the form said it was for a refugee visa and he told them he was not a refugee.  He was told just to sign the blank documents as this was how it was done in Australia, they would take care of everything and he could start working.  He trusted these solicitors and simply signed whatever they asked him to and paid $1500 as asked.

2. Mr Fernandez was made aware that something might have been wrong just before an interview with the Refugee Review Tribunal when he was informed that his solicitor was the subject of a number of charges and would not be acting for him at the hearing.  He went to another solicitor and told them he wanted to stay in Australia and work.  By this time he had already met and moved in with his now wife, Mylene Fernandez.  This other solicitor assured him that they would simply write to the Minister for Immigration and ask that Mr Fernandez be given special consideration as he had an Australian girlfriend.  Mr Fernandez signed a form appointing these solicitors as his agent on this basis.  These solicitors instead continued the false story and wrote a quite fantastical letter to the Minister suggesting that Mr Fernandez was in fear of his life due to harassment from Police in the Philippines as a result of his political involvement.  Upon receiving a refusal from the Minister, Mr Fernandez approached the local Member of Parliament, Mr Ian Causley MP.  Mr Causley advised him to stop working, to organise his departure for the Philippines and to then apply for a spouse visa.  The applicant immediately did these things and Mr Causley wrote a letter in support of his application (Document T13 Folio 65).

3. At the hearing, a number of references were handed up from prominent people in the Philippines, including the Chief of Police, the local Mayor, other political figures and two Priests.  The picture they paint of this young man is that of a hard-working, community spirited, responsible individual.  There were extensive character witnesses from Australia who attested not only to the genuineness of the marriage with Mylene Fernandez, but also to the good character of the visa applicant.  No evidence was presented to dispute the validity of their assessments.

4. It is the Tribunal's findings that all of Mr Fernandez's actions in breach of the migration laws were in an attempt to remain in Australia and that, more importantly, they occurred as a result of unscrupulous solicitors and migration agents.  He may have been less than diligent in his dealings with them but his role in the whole matter was very much a secondary role and certainly not a precipitating one.  It is the Tribunal's assessment that if the spouse visa were to be granted there would be no risk of recidivism.  The applicant has no criminal record and poses no threat to Australia.

5. If the visa were refused, the applicant in these proceedings, Mylene Fernandez, would return to the Philippines to be with the visa applicant.  She is five months pregnant with his child.  This is a genuine marriage and the separation from him has caused her significant hardship.  The standard of living and of medical care in the Philippines is far lower than Australia and the relocation would be difficult for her.  Her parents reside in Australia and are very close to her.  They would not be able to visit her regularly which would cause them severe hardship.  On the other hand, if the visa were granted, the applicant has already got an established home.  He has a wife, an extended family and a social circle, which he is already a part of here in Australia, as well as an offer of full-time employment.  All the evidence points to Mr Fernandez being a productive and valuable member of the Australian community.

6. If anyone is to be taken to task over their blatant disregard of immigration law in this case, it is the solicitors who perpetrated such lies and took advantage of a fellow Philipino who placed his trust in them to help him abide by Australian laws.

7. For the above reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the visa applicant, Edgardo Fernandez be assessed as being of good character and be granted the visa he seeks.

   I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

   Signed:         Emma Oettinger
     Associate

   Date/s of Hearing  18.5.00, 22.5.00
   Date of Decision  22.5.00
   Rep. for the Applicant              Mr K Eggins, applicant's stepfather

   Solicitor for the Respondent    Mr E Howell, Australian Government Solicitor's Office