Gonzales and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 895

DECISION AND REASONS FOR DECISION [2002] AATA 895

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/380

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DULCIE GONZALES
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date4 October 2002
PlacePerth

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the application by Renie Gonzales for a combined Class UF Subclass 309 Spouse (Provisional) and Class BC Subclass 100 Spouse (Migrant) visa should not be refused pursuant to s 501(1) of the Migration Act 1958.
  .........(sgd S D Hotop)..............
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Spouse (Provisional) and Spouse (Migrant) visa – visa applicant arrived in Australia from the Philippines in December 1997 on Temporary Resident visa – visa applicant applied for Protection visa in December 1997 – visa applicant made false or misleading statements to Department – Department refused application for Protection visa – visa applicant applied to Refugee Review Tribunal ("RRT") for review – visa applicant made false or misleading statements to RRT – RRT affirmed Department's decision in December 1999 – visa applicant and review applicant married in January 2000 – visa applicant remained and worked in Australia from January to April 2000 – visa applicant voluntarily returned to the Philippines in April 2000 – visa applicant applied for Spouse visa in April 2000 – Department refused application for Spouse visa in September 2000 – visa applicant applied to Migration Review Tribunal ("MRT") for review – MRT remitted matter for reconsideration – child born in Australia to visa applicant and review applicant in April 2001 – Department refused application for Spouse visa in October 2001 – whether visa applicant passes the character test – whether visa applicant not of good character having regard to past and present general conduct – whether discretion should be exercised to refuse to grant Spouse visa to visa applicant – primary considerations – protection of Australian community, expectations of Australian community, and best interests of child – other relevant considerations – degree of hardship to review applicant and child.

Migration Act 1958 ss 501(1), 501(6)(c)(ii)
Direction – Visa Refusal and Cancellation under section 501 – No 21
Goldie v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re Said-Chidiac and Department of Immigration and Multicultural Affairs (1998) 52 ALD 700

REASONS FOR DECISION

4 October 2002 Associate Professor S D Hotop, Deputy President

Dulcie Gonzales ("the applicant") has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the respondent"), dated 16 October 2001, to refuse to grant a visa, namely, a combined Class UF Subclass 309 Spouse (Provisional) and Class BC Subclass 100 Spouse (Migrant) visa, to her husband, Renie Gonzales ("Mr Gonzales"), pursuant to s 501(1) of the Migration Act 1958 ("the Act").
At the hearing the applicant was represented by Mr L Fee, a Registered Migration Agent, and the respondent was represented by Ms C Wallwork, Solicitor. The Tribunal had before it the documents ("T documents", T1-T57, pp 1-184), and supplementary documents ("S documents"), lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, and various documentary exhibits tendered in evidence by the applicant (A1-A5) and by the respondent (R1-R3). Oral evidence was given by the applicant, and by Mr Gonzales (by telephone from the Philippines). Ms A Sleeman, a qualified interpreter in the Tagalog language, was also in attendance.
The Factual Background
The relevant background facts, as found by the Tribunal on the basis of the T documents and about which there is no dispute between the parties, are as follows:
The applicant was born on 11 June 1963 in New Zealand and was a New Zealand citizen by birth.
Mr Gonzales was born on 11 November 1972 in the Philippines and is a Filipino citizen.
Mr Gonzales first arrived in Australia on 5 December 1997 having been granted a Class TE Subclass 421 Temporary Resident visa on 3 December 1997 permitting him to remain in Australia until 18 December 1997.
On 11 December 1997 Mr Gonzales lodged with the (then) Department of Immigration and Multicultural Affairs ("the Department") an application for a Protection visa (866). On the same date he was granted a Bridging visa permitting him to remain in Australia until 28 days after notification of the "primary decision", or the "decision of a review authority", or the withdrawal of his application (as the case may be), in respect of his application for a Protection visa.
On 20 January 1998 a delegate of the (then) Minister for Immigration and Multicultural Affairs made a decision to refuse to grant a Protection visa (866) to Mr Gonzales on the ground that he was satisfied that Mr Gonzales is "not a person to whom Australia has protection obligations under the Refugees Convention" and that he therefore did not satisfy the criterion prescribed by cl 866.221 of the Migration Regulations for the grant of a Protection visa. Mr Gonzales was formally notified of that decision by letter dated 20 January 1998 which also advised him as follows:
"Your status in Australia
You have been granted a Bridging Visa A with permission to work in Australia for the period that your Bridging Visa is valid. This Bridging Visa will allow you to remain in Australia lawfully for a period of 28 days after you receive this letter. You are taken to have received this letter 7 days from the date of this letter. If you apply for review within this 28 day period, your Bridging Visa will be valid until 28 days after a final decision is made on your application.
Review Rights
You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you a Protection Visa (866).
…
Please note that:
· if you apply for review of the decision to the RRT; and
· the RRT determines that you (and if applicable members of your family unit) are not refugee/s
a post-decision fee of $1000 will be payable within 7 days of being notified of the RRT's decision. …
…".
On 19 February 1998 Mr Gonzales lodged with the Refugee Review Tribunal ("RRT") an application for review of the delegate's decision to refuse to grant him a Protection visa.
On 17 December 1999 the RRT affirmed the delegate's decision to refuse to grant a Protection visa to Mr Gonzales. He was formally notified of that decision by letter dated 17 December 1999 which also advised him as follows:
"You have the right to seek review of this decision by the Federal Court. An application for review must be lodged with the Court within twenty-eight (28) days of notification of this decision. You are taken to have been notified seven (7) days after the date of this letter. You must name the Minister for Immigration and Multicultural Affairs as the respondent and not the Tribunal. Federal Court proceedings are not private unless an order has been made by the Court suppressing your name. I strongly advise you to seek legal advice if you wish to seek review by the Court.
If you have any questions about your current residency status in Australia you should contact your regional office of the Department of Immigration and Multicultural Affairs, not the Tribunal."

It was indicated in that letter that a copy of it had been sent to Mr Gonzales' migration agent, and enclosed therewith were instructions regarding the required payment by Mr Gonzales of the "post-decision fee" of $1,000.

The applicant and Mr Gonzales were married in Perth on 29 January 2000.
A form of "Application for migration to Australia by a partner", constituting an application for a Class BC Subclass 100 Spouse (Migrant) visa, was signed by Mr Gonzales and dated 5 February 2000.
On 16 April 2000 Mr Gonzales voluntarily departed Australia.
On 19 April 2000 the application form referred to in paragraph 12 above was lodged with the office of the Department at the Australian Embassy in Manila, Philippines, on Mr Gonzales' behalf by his migration agent.
On 19 April 2000 Mr Gonzales was interviewed by an employee of the Department in Manila. By letter of the same date an officer of the Department in Manila wrote to Mr Gonzales as follows:
"It has come to the attention of the Department that your application for migration on spouse grounds may be refused under Section 501 of the Migration Act 1958 (the Act). The relevant ground is subparagraph 501 (6)(c) (ii).
I have attached the full text of section 501 for your information.
Before the Minister or his delegate considers whether to refuse your visa under subsection 501(2), you are provided with an opportunity to comment. Matters to be taken into account include the following:
·That you provided false and misleading information to the Department in respect of your protection visa application. That you continued to provide false and misleading information at all stages of the process to DIMA, the RRT and the Minister.
In reaching a decision whether to refuse the visa the delegate of the Minister will have regard to the matters noted above.
The delegate will also take into account matters such as:
·the purpose of your travel to and stay in Australia;
·whether you have previously travelled to or spent any time in Australia;

your present circumstances, such as:
-the length of your lawful residence in Australia;
-the strength of your family, social, business and other ties with Australia;
-the degree of hardship which may be caused to Australian citizens or permanent residents if your visa were cancelled;
-any unreasonable hardship you might suffer if your visa were cancelled;
-your ties to other countries;
the circumstances in which the ground for refusal arose;
the seriousness of the ground for refusal;
your behaviour in relation to the Department.
In preparing your comments you should address the matters listed above, if they are relevant to your circumstances. You may also wish to provide any further information that you feel the Minister's delegate should be aware of and take into account.
…".

On 5 May 2000 Mr Gonzales responded to the abovementioned letter as follows:
"As per our discussion on 19/4/2000, herewith is the information as requested.
I applied to go to Australia on a sports visa, Dec.97. The sports visa was granted for fifteen days.
Then I applied for a protection visa, Dec.97 through an agent, Violy, and I paid her $1,600 Aus $. Protection visa was declined due to did not meet criteria (*However, was granted a bridging visa A.) My understanding was that she was filing my papers in Sydney as I was going to Perth.
When I arrived in Perth, Dec.'97, I worked part-time. After a few weeks my agent sent me a copy of RRT decision which was declined. She told me she is going to apply for a bridging visa.(*)
Then, I applied in Ingham's working full-time. Advised my agent to change my address in Perth. I received letter from RRT Feb 16, 1999 to review decision. Received letter from RRT dated March 22, 1999 of hearing date being May 24, 1999. By this time I had an agent in Perth…
They cancelled due to the Judge not being there.
Letter received 27 May '99, hearing date July 15, '99. Cancel hearing again date July 15 '99. Next hearing to be held July 19 '99. Hearing done by telecast in Perth with Judge and Interpreter. Discussion on all documents preceding my case. After hearing Judge informed will send a decision of hearing.
Letter received Nov.30 '99. Hearing date Dec 19, 1999. Decision will be handed down. Letter received Dec.17 '99 by RRT. Decision was not entitled to a protection visa. Fee of $1,000 paid to Department of Immigration and Multicultural Affairs. Copy sent to my agent … of decision also.
On discussions with my agent we were still waiting for a formal letter to state I have 28 days in which to leave Australia. My agent advised it would be much better to go to Philippines. In the meantime I got married Jan. 29 2000. No confirmation by letter as yet. I waited and waited for a couple of months and my wife and I decided to return to the Philippines and lodge for spouse visa. My wife and I had decided it was better to be legal.
I have applied for a spouse visa because we love each other and we want to be together. We are planning to have a baby next year and in the near future we plan to buy a house.
Our love and commitment to each other is founded from our marriage. If by chance I get my visa by August we plan to go to New Zealand in September to meet the rest of my wife family."
On 24 April 2000 the applicant was also interviewed by the abovementioned (in paragraph 15) employee of the Department in Manila, and on 9 June 2000 Mr Gonzales was interviewed by an officer of the Department in Manila.
On 30 September 2000 the abovementioned officer of the Department (as a delegate of the Minister) made a decision to refuse to grant a spouse visa to Mr Gonzales on the ground that he was not satisfied that there was a "genuine and continuing" spousal relationship between Mr Gonzales and the applicant as required by the Migration Regulations for the grant of a spouse visa.
On 27 October 2000 the applicant lodged with the Migration Review Tribunal ("MRT") an application for review of the delegate's decision of 30 September 2000.
On 28 March 2001 the MRT remitted the matter for reconsideration in accordance with the direction that Mr Gonzales is the "spouse" (within the meaning of the Migration Regulations) of the applicant.
On 24 April 2001 the applicant gave birth to a male child in Perth. Mr Gonzales is the father of that child.
On 17 September 2001 Mr Gonzales was interviewed by the abovementioned officer of the Department (referred to in paragraphs 17 and 18 above) in Manila. A typed record of that interview was tendered in evidence (Exhibit R3). By letter of the same date that officer then wrote to Mr Gonzales as follows:
"I refer to your application for migration lodged on 19 April 2000. Applicants for this class of visa must satisfy Public Interest Criterion 4001, known as the good character requirement, and through it, Section 501 of the Migration Act (a copy of that section is enclosed for your information). I have also enclosed a copy of the Minister's General Direction under Section 499 of the Migration Act 1958 (No.21) that provides you with information about factors that are taken into consideration in making an assessment under Section 501 of the Migration Act 1958 and in exercising discretion in applying that provision.
Records show that in your previous dealings with this department, you have:

Applied for a protection visa and review in Australia on the basis of false and misleading claims, knowing that you were not a "refugee" and for purposes other than a genuine need to seek Australia's protection;
Provided false and misleading evidence to the Refugee Review Tribunal regarding your claims for protection;
Overstayed your visa and became unlawful in Australia and worked illegally once you had become unlawful.
I believe that these facts are relevant to consideration of your ability to satisfy the good character criterion.
Section 57 of the Migration Act requires that you be given an opportunity to comment on adverse or other information which may lead to a decision to refuse a visa. Therefore, you are invited, if you wish, to provide further information in writing for the consideration of the decision maker. You should provide information about why you acted in the manner stated above and why you believe you should be assessed as passing the character test (see attached) given your actions as stated above.
You should also provide any additional information and evidence you have to support your claims of being in a genuine and continuing spouse relationship with your sponsor.
…".

The applicant responded, on behalf of Mr Gonzales, by letter dated 19 September 2001.

On 16 October 2001 the abovementioned officer of the Department (as a delegate of the Minister) made a decision to refuse to grant a combined Class UF Subclass 309 Spouse (Provisional) and Class BC Subclass 100 Spouse (Migrant) visa to Mr Gonzales, pursuant to s501(1) of the Act. Mr Gonzales was formally notified of that decision by letter of the same date in the following terms:
"I am writing about your application of 19 April 2000 for a visa for migration to Australia.
You were interviewed and advised verbally and in writing that the delegate of the Minister for Immigration and Multicultural Affairs intended to examine whether there were grounds for refusal of your visa application under section 501, the character provisions, of the Migration Act 1958 (the Act).
The comments you provided were carefully considered and taken into account. The delegate of the Minister for Immigration and Multicultural Affairs has, after exercising discretion, decided to refuse your visa pursuant to s501(2) (sic) of the Act. The particular ground under which you do not pass the Character Test is subsection 501 (6) (c) (ii) of the Act.
…".
On 19 October 2001 the applicant lodged with the Tribunal an application for review of the delegate's decision of 16 October 2001.
The Applicant's Evidence
In her evidence-in-chief the applicant said that she first met Mr Gonzales in August 1999 [in Perth]. She said that she first became aware that there were problems with his migration status in November 1999 and that a migration agent was assisting him. She added that it was not until December 1999 that she became aware that he had applied for a protection visa. She recalled Mr Gonzales showing her a letter dated 17 December 1999 [namely, the letter referred to in paragraph 10 above formally notifying him that his application to the RRT had been unsuccessful] and saying that they needed to see the migration agent about it. She said that the migration agent advised them to apply for a spouse visa and that the agent prepared the necessary forms which they signed. As regards the abovementioned letter of 17 December 1999 from the RRT, the applicant said that the migration agent advised them that they should wait until they received a letter from the Department stating that Mr Gonzales was required to leave Australia within 28 days. She said that they kept waiting, and also kept in touch with the migration agent, and the letter eventually arrived in late March and the agent advised them that Mr Gonzales had to leave Australia because he had overstayed.
The applicant said that they then departed Australia together for the Philippines. She said that she accompanied Mr Gonzales to the office of the Department in Manila for the purpose of lodging his application for a spouse visa and that they were each interviewed there.
Asked whether Mr Gonzales had ever explained to her why he applied for a protection visa in Australia, the applicant responded that the only reason he had given her was that he wanted to remain in Australia and work.
The applicant said that, to her knowledge, Mr Gonzales had not committed any offences in the Philippines. As regards his application for a protection visa, she said that he did this through an agent in whom he put his trust, and that she believed that he did not intentionally set out to do any wrong.
The applicant told the Tribunal that since the birth of their child [in April 2001] she visited Mr Gonzales in the Philippines in July [2002] for a period of 3 weeks during which she, Mr Gonzales and their child were together the whole time. She said that since she and the child had returned to Australia, the child and Mr Gonzales have spoken on the telephone and that, as recently as the previous day, the child "threw a tantrum" and was "trying to grab the phone" after speaking with Mr Gonzales on the telephone. She added that, although the child has not spent much time with Mr Gonzales, there is a "very close bonding" or relationship between them.

In cross-examination the applicant was questioned about her other children. She said that she has a 19 year old daughter who lives in New Zealand and a 14 year old son who formerly lived with her parents in New Zealand but since November 2001 has lived with her in Perth.
She said that she met Mr Gonzales in August 1999 through some of her relatives with whom he was living in Perth and that they married in January 2000. She confirmed that she became aware in December 1999 that he had applied for a protection visa but that she was not aware at that time of the Department's claims that he had made false and misleading statements in his application for a protection visa and in his application for review by the RRT.
Asked where she would choose to reside with Mr Gonzales' child, on the assumption that Mr Gonzales was not granted a visa, the applicant said that she and their son would nevertheless remain in Australia.
Asked whether she regarded it as a serious offence to give false and misleading information to the Department, the applicant said that she did not. She elaborated that, compared with offences such as terrorism, arson, rape and the like, she did not regard it as a serious offence. She added, however, that having since read the documentation provided by the Department in relation to this matter she now understood that it was regarded as a serious offence.
In response to questioning by the Tribunal regarding her, and Mr Gonzales', child the applicant reiterated that during the 3-week period that she and the child spent with Mr Gonzales in the Philippines in July 2002 a "very close bonding" developed between the child and Mr Gonzales. She added that since their return to Australia she has noticed a "big change" in the child – that he has become happier and more settled – and she attributed that change to their "father and son bonding".
The Tribunal also sought clarification of the position regarding Departmental communication with Mr Gonzales following the adverse decision of the RRT on 17 December 1999 (see paragraph 10 above). The applicant said (somewhat inconsistently with her evidence-in-chief – see paragraph 25 above) that no letter was subsequently received from the Department informing Mr Gonzales that he must leave Australia within 28 days. [The Tribunal notes that no such letter appears in the T documents, nor was such a letter tendered in evidence by the respondent].
The Evidence of Mr Gonzales
A written statement dated 10 February 2002 signed by Mr Gonzales was tendered in evidence by the applicant. The contents of that statement are as follows:
"I am Renie Gonzales, 29 years old, married with one child and residing in the Philippines.
I came to Australia on Dec. 5, 1997 on a 'Sports Visa' which allowed me to stay 15 days in Australia. I worked as a 'second trainer', giving water, wiping, and applying cream on players' wounds.
Several days after the games, a companion and I were approached by a Filipino man while we were taking a walk at the Parramatta Shopping Centre. He asked how we were and if we had been here long. We said no, in fact, we told him we were going home to the Philippines next week. Then he asked whether we wanted to work here and said he knew someone who could help us get working permits. We asked if it was a sure thing, and said that we did not want to get involved in anything illegal and that if the person were okay, we would meet him next day. He agreed to bring the other person along the next day and left. We continued with our walk and went all over that shopping centre.
We met again the next day. He had a woman with him. He introduced us to 'Violy'. We went to her apartment, where we talked about getting a new visa. We paid A$1,000. She asked us what our jobs had been in the Philippines. She gave us application forms, which we filled in and signed. Then I copied what had to be written on the application form. I did not ask any more questions because she said it was okay already and that we would be able to get new visas. She was with us again the next day. We went to the bank and opened an account. We also went to the Tax Office and I got my tax file number. Afterwards we went to the Immigration Office in Sydney. She was also with us when we got the new visas, which we got on the same day. We went to Perth to look for work there and our arrangement was for her to send everything that has to do with the outcome of our visa application.
She rang us after several weeks and said we had to send A$600 to A$700 for our visas to be processed. We were working part-time so we were able to send money to her. She sent application forms for us to sign again. We sent them back to her. But then we received a copy from the RRT, which said our visas had been declined and we therefore had to apply again for bridging visas. Violy had said that too. She said she would take care of it. That was okay with me because as long as I had a working permit, I could work properly, that is, without the fear of immigration officers suddenly coming and arresting me because I had no permit. I applied for a job at Inghams, got accepted and worked there until the job became full time. I moved to another place of residence. I rang Violy and gave her my new address, so the Immigration Office would know my correct place of residence.
Days, weeks, years passed, I did not hear from her. I called her by phone and was told that it was a wrong number. I rang again for several days; the line had been cut.
Feb 16, I received a letter from the RRT saying there was going to be a 'review decision'.
March 22, 1999, I received a letter from the RRT again saying I would have a hearing on May 24, 1999. At that time [Ms O] was my agent. She also lived in Perth.
The hearing had been cancelled because the judge was absent. She sent me a letter again on May 27 '99. The hearing was supposed to take place on July 15 '99. Again it did not take place on that date. The hearing was held on July 17 '99. It was televised from Melbourne. I was alone in a room; in front of me was a television set. I could see the judge and my interpreter. I had brought along evidence which confirmed that there was still trouble in the Philippines, that the rebels were still killing people (MNLF)… … is what I had shown and brought to the hearing was true. I can say that 70% was true. The reason I had said 30% was boasting falsehoods was because I did not know what Violy had written when she re-applied for a bridging visa for me because she said that my protection visa had been declined. I had not heard anything from her from the time my papers were put in order. That was what I had said as 30% boasting falsehoods because I did not know. Before the end of the hearing, the judge said that I was going to sent whatever the outcome would be.
I received the letter about the outcome of the hearing. The decision was that my protection visa had been cancelled. They did not say that I should go home or return to my country, so I waited once again to be sent a notice or a letter saying that, in fact, I had to leave the country (Australia) on such a date. Nothing was sent to me. I was sent a letter informing me that I should pay $1,000 to the bank as payment to the Department of Immigration and Multicultural Affairs. My agent, [Ms O], received the decision as well.
My agent said, we should wait for the formal letter advising me to leave the country. At that time my wife and I had already been living together. We waited and waited. My wife and I got married on Jan 29, 2000.
Several months after the wedding, we went to my agent. She said it would be better if I went home with my wife and applied for my 'spouse visa' there. We did that.
My wife and I went home to the Philippines and after several days we went to the Australian Embassy in the Philippines where we applied for a 'spouse visa' in April 2000.
We got married because we know we love each other. We can prove it because although we had been apart from each other, we had continued writing each other and calling each other by phone. We have a child; his name is 'Michael Christopher Parkinson Gonzales'.
The reason I am asking for pardon from all of you comprising the Australian Embassy is that if I had lied or committed an offence against all of you regarding my past visa, it was because I did not realize that what I had done could affect my family up to now. Perhaps my suffering here would suffice. I have been here in the Philippines nearly 20 months, suffering because I love my wife and our child. Maybe this is what the Lord has given me to make up for offences I had committed against Australia, particularly, against you who comprise the Australian Immigration. Perhaps lying is not such a big crime. I have not killed, stolen, been a member of a terrorist group or made trouble in your country. And as for overstaying in your country, that was not my intention. I thought it was still okay for me to stay. I hope you help me be reunited with my family in your country.
My application became useless several times because I had committed an offence, although my only desire was to be able to be with my family, to give them a good life and to be able to make my family whole for all of our lives filled with happiness and love for one another.
I do not have a permanent job yet. I sometimes go with my friends building houses. I used to drive a tricycle; I do not do that anymore. I had work only once. I help look after my nephews and nieces. Sometimes my mother gives me money and I put this aside so when the telephone bills come I have something to pay them with. Even if I should want to ring my wife frequently, I would not be able to do so because I would have no money. But my Mrs. always calls me up. As a spouse I would like so much to ring her and hear her voice. That is the only thing that gives me strength in my everyday life here.
Her stomach swelled … feel the baby kicking when it was still in her womb, it was born and I still was not by their side. The child is growing; I cannot even kiss or give him a cuddle because I am here. Letters and pictures are all I read and see. When their pictures come I cannot stop myself from weeping. Because I miss them, I blame myself specially when I go to church every 29th of the month. That is the date of our wedding. I also always ask everyone, the Lord, that I wish you would grant what I have long requested, for us all to be together again in Australia. I always get sick thinking of my wife and child.
The reason I want to live in Australia is that I would have the opportunity to improve my life, to give my child a good future, to give him right education. What can I give him here in the Philippines? I do not have a full-time job. There are more people than jobs here unlike in Australia where you think only of two things: your family and your job. Love them both. If a person is diligent, he will get somewhere in life. We met, fell in love and got married in Australia so it is there, as well, we will continue our beautiful relationship as a couple all our lives.
The reason my wife and child chose to live in Australia is that there are more opportunities for them to make their lives better. That will not happen in the Philippines because I cannot support them here, particularly, as far as the needs of the child are concerned. It hurts each of us that we are not together, so we are devising a way and each one is waiting that one day we shall be together and shall not ever be apart while we are alive. Sometimes it is difficult to explain what I feel. They are on my mind, everyday and every night. I cannot eat, I am sad and I am always looking for something. Every night before I sleep, I pray that I could return to Australia again. I always look at their picture before I close my eyes at night.
It is certainly not difficult to understand at all why we would like to live in Australia. There is where it all began, loving trusting in each other, the beautiful dreams: to have a child and to be a happy family. And we know that if we should live there, all our dreams would be fulfilled. I love my wife and child. I will give them even my life. This is how much I love them. I have wronged you, or I have committed an offence against the Australian Immigration. I am already being punished now for the offence I committed through my sufferings and heartaches. I wish you would grant us the spouse visa we have longed for.
I thought it best to write my letter in Tagalog so that I can explain well what I had said which was 70% truths and 30% boasting falsehoods. Everything I brought along to the RRT hearing, all of them were true, even the case of my father. In fact, their case is still going on here in the Philippines. Everything I had said was true. As for that 30% boasting, those were what Violy had written on the form when we were already in Perth because she had said she was going to take care of it. But as time passed she had disappeared, hidden and eluded her duty towards us. Thus at the end I have had to attend to my visa myself. I did not think that the time would come when I would be affected. If what I had done is not good begging … … … for your understanding or pardon.
I did not know that I would stay this long in the Philippines either. My mother-in-law had died. I had never even seen her in all my life. We had long wanted to see each other but now everything is too late. I have become sadder because she had long wanted to see me. My wife was also shocked by the event.
I wish you would grant me the visa so that I could go back to my wife and child again. My life would be lacking if they were not with me. It is very difficult to be away from my family. I love them very much; they are my life now and forever. I hope you understand me".

[The Tribunal notes that the above letter was written by Mr Gonzales in the Tagalog language and was translated into English by an accredited translator made available by Centrelink.]

In his oral evidence-in-chief Mr Gonzales confirmed that he received the letter of 17 December 1999 from the RRT informing him that his application for review had been unsuccessful and that he then paid the relevant fee of $1,000.00 to the Department. He said that, on advice from his migration agent, he decided not to take any steps to leave Australia until he received a formal letter from the Department requiring him to do so. He said that between that time and April 2000 he remained in Australia and was working because he believed that he could lawfully do so. He said that if he had known he was "illegal", he would have left Australia and returned to the Philippines. Asked whether he thought about contacting the Department about his migration status (as suggested in the RRT's letter of 17 December 1999 – see paragraph 10 above), he said that he always relied on his migration agent's advice. Asked by the Tribunal why it was that he eventually left Australia and returned to the Philippines in April 2000, Mr Gonzales said that , while waiting for a letter from the Department, he and the applicant decided to get married and thereafter, while still waiting for such a letter, they decided, on the advice of the migration agent, that he should lodge an application for a spouse visa with the Department's office in the Philippines.
Mr Gonzales confirmed that he had never been convicted of any offences in the Philippines.
Mr Gonzales also confirmed that he had met his son for the first time in July 2002 when the applicant brought him to the Philippines for a 3-week visit. He said that he enjoyed being with his son and was sad that he was now separated from him. He added that it is important for him to be with his son and that, if he were in Australia, he would do everything he could to help in his son's upbringing.
In cross-examination Mr Gonzales was asked about his application for a protection visa and his subsequent application to the RRT. He said that the information he provided for the purpose of his application to the Department was "all true", but that, in respect of his application to the RRT, he acknowledged that only "70%" of the information provided was true and "30%" of it was false. Asked to explain why false information was provided in that application, Mr Gonzales said that the false information was included in the application form by the person ("Violy") who was advising him and who prepared that form. He acknowledged that he knew it was wrong to include false information in his application to the RRT but that he wanted to stay and work in Australia and he was prepared to provide false information to enable him to do so.
Finally, Mr Gonzales said that he would be unable financially to support the applicant and their child in the Philippines because of lack of work or low wages, but that if he were allowed to remain in Australia he would be able to work hard and provide the best for his family.
The Legislation
Section 501 of the Act relevantly provides:
"(1)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.
Note:    Character test is defined by subsection (6).
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)      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; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)        engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)       vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
…"
Section 496(1) of the Act authorises the respondent to delegate to a person any of the respondent's powers under the Act. Section 499(1) of the Act authorises the respondent to give written directions to a person or body about the performance of their functions, or the exercise of their powers, under the Act, and subs (2A) of s 499 obliges such person or body to comply with such a direction.
Section 500(1) of the Act provides that application may be made to this Tribunal for review of, inter alia, a decision of a delegate of the respondent under s 501. In conducting such a review, the Tribunal is obliged, by s 499(2A) of the Act, to comply with a direction made by the respondent under s 499(1).
On 23 August 2001 the respondent, pursuant to s 499(1) of the Act, gave a written direction to any person or body having functions or powers under s501 of the Act. This direction may be cited as "Direction – Visa Refusal and Cancellation under section 501 – No 21" ("the Direction"). The Direction comprises two parts: Part 1 deals with the application of the "character test" set out in s 501(6) of the Act (see paragraph 42 above), and Part 2 deals with the exercise of the discretionary power to (relevantly) refuse to grant a visa, pursuant to s 501(1) of the Act, in the event that the applicant for the visa does not pass the "character test", and in particular sets out the "primary", and other, considerations having regard to which that discretionary power must be exercised.

The Application of the Act and the Direction to the Circumstances of Mr Gonzales' Case
The "character test"

Failure by a person to satisfy the decision maker that they pass the "character test" (within the meaning of s 501(6) of the Act) is a condition precedent to the existence of the discretionary power, conferred by s 501(1) of the Act, to refuse to grant a visa to that person. Section 501(6) of the Act sets out various alternative circumstances in which a person, for the purposes of s 501, does not pass the "character test". In the present case it is common ground that the only such circumstance which may be satisfied is that set out in subparagraph (c)(ii) of s501(6) – namely, that "having regard to … the person's past and present general conduct the person is not of good character".
Part 1 of the Direction states, in relation to the abovementioned circumstance set out in s 501(6)(c)(ii), as follows:
"Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct
1.7      Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
·Subparagraph 501(6)(c)(i) – past and present criminal conduct
…
·Subparagraph 501(6)(c)(ii) – past and present general conduct
1.9      In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)      whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
·engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
·continual evasion or non-payment of debt;
·continual disregard as to payments of family maintenance;
·involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; or
·involvement in war crimes or crimes against humanity.
(b)      whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)      whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)      whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10     In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)      resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
·whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
·the seriousness of the offence with which the applicant has been charged; or
(b)      resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

1.11General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)."

The respondent submitted that Mr Gonzales is not of good character, having regard to his past general conduct, and that he therefore, in accordance with s 501(6)(c)(ii) of the Act, does not pass the "character test" on the following grounds:
·     he lodged with the Department an application for a protection visa on 11 December 1997 "without any basis for doing so";
·     he lodged with the RRT, on 19 February 1998, an application for review of the Department's decision to refuse to grant a protection visa to him, "maintaining the baseless refugee claims" that he previously made to the Department;
·     he remained unlawfully, and worked unlawfully, in Australia between January 2000 and April 2000.

The respondent, in support of its submission that Mr Gonzales does not pass the "character test", referred to the following relevant considerations specified in subparas (a), (b) and (c) of para 1.9 of the Direction which, it contended, were satisfied on the facts of this case:

·     involvement by Mr Gonzales in "breaches of immigration law" (subpara (a));
·     the provision by Mr Gonzales of a "bogus document", and his making of a "false or misleading statement", in connection with his application for the grant of a protection visa (subpara (b));
·     the making by Mr Gonzales of a "false or misleading declaration on an approved form" about his character or conduct (subpara (c)).

The applicant contended that Mr Gonzales was entitled to lodge an application for a protection visa and subsequently to apply to the RRT for review of the Department's adverse decision, and that he was unaware that he was an unlawful non-citizen between January 2000 and April 2000. The applicant conceded, however, that Mr Gonzales did make false or misleading statements in his application for a protection visa. The applicant submitted, however, that the Tribunal should, in accordance with para 1.11 of the Direction, have regard to Mr Gonzales' good conduct from the time he returned to the Philippines in April 2000 until the present time. In short, the applicant submitted that, having regard to the whole of Mr Gonzales' past and present general conduct, the Tribunal should not be satisfied that Mr Gonzales does not pass the "character test".
As regards the meaning of the phrase "good character" in s 501(6)(c) of the Act, Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 said that those words "should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community". That interpretation was approved by the Full Court of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197, and in Goldie v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 321 at 323. In Goldie the Full Court went on to say (at 324):
"[8] Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

In Baker the Full Court also considered the meaning of the phrase "general conduct", in a former provision of the Act corresponding to the present s 501(6)(c), as follows (at 195):

"That leaves for consideration just what is meant by 'general conduct' when, in the same context, this expression is used to distinguish conduct that is not 'criminal conduct'. In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading of 'general conduct', is conduct in general. The root meaning conveyed by the adjective 'general', as is made clear by The New Shorter Oxford English Dictionary (1993), is the idea of universality. In s 501(2), it expresses a contrast with the particularity inherent in the reference to 'criminal conduct'. We do not think there is any warrant for extracting, from the broad word 'general', a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly…".

As regards the circumstances of the present case, an important matter for the Tribunal's determination, for the purpose of the application of the "character test", is whether Mr Gonzales made a false or misleading statement in connection with his application to the Department for a protection visa, and his subsequent application to the RRT for review of the Department's adverse decision. Mr Gonzales' oral evidence to the Tribunal was that the information he provided for the purpose of his application to the Department was "all true", but that "30%" of the information provided in support of his review application to the RRT was false. Mr Gonzales' oral evidence to the effect that the information he provided to the Department was "all true" is, however, at odds with his answers to questions asked of him by the Departmental officer in Manila in the interview conducted on 17 September 2001 (a record of which was tendered in evidence by the respondent – Exhibit R3). It may be that Mr Gonzales was confused regarding which visa application to the Department he was being questioned about – perhaps he thought reference was being made to his original application, being his application for a "sports visa" prior to his initial entry to Australia on 5 December 1997. In any event the applicant was prepared to concede that false information was provided to the Department in connection with Mr Gonzales' application for a protection visa on 11 December 1997. Having regard to the applicant's own evidence that he was prepared to provide false information in order that he would be allowed to remain and work in Australia, it seems to the Tribunal that that concession was rightly made. It is also consistent with answers given by Mr Gonzales in the abovementioned interview on 17 September 2001 (see Exhibit R3) to the effect that the sole reason he applied for a protection visa was that he wanted to stay and work in Australia. Likewise, Mr Gonzales' review application to the RRT was, according to his own evidence, made for the purpose of enabling him to remain and work in Australia and he was prepared to allow false information to be included in that application for that purpose. Having regard to the abovementioned considerations the Tribunal finds that Mr Gonzales did make false or misleading statements, in connection with his application for a protection visa, to the Department and subsequently to the RRT. Even if it be the case that (as Mr Gonzales claimed) the false information was included in his review application to the RRT by his migration adviser ("Violy"), he nevertheless signed off on that application and must therefore take responsibility for its contents: Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625 at para 18.
The Tribunal notes that s 234(1) of the Act prohibits, inter alia, the making by a person, in connection with an application for a visa, of a statement that, to that person's knowledge, is false or misleading in a material particular. Having regard to the abovementioned finding, it may be that Mr Gonzales has also contravened that provision. The Tribunal also notes that, by s 235(3) of the Act, it is an offence for an unlawful non-citizen to perform work in Australia; and that, by s 235(4B), that offence is one of "strict liability". Having regard to the undisputed fact that Mr Gonzales worked in Australia from January 2000 (after the RRT had affirmed the Department's decision to refuse to grant him a protection visa) until April 2000, it may be that he thereby committed that offence.
As regards the presence of "countervailing factors" (see para 1.9 of the Direction), the Tribunal is prepared to accept Mr Gonzales' evidence that he has not committed any offences since his return to the Philippines in April 2000 and, to that extent, the Tribunal is prepared to accept that he has been of good behaviour for that period. Certainly there is no evidence before the Tribunal to the contrary. Nor, however, is there any evidence before the Tribunal of any specific "good acts" (see para 1.11 of the Direction) of Mr Gonzales during that period. The most that can be said in Mr Gonzales' favour in this respect is that his general conduct in the Philippines since April 2000 has not involved the commission of any offences and, to that extent, may be described as "good". On the other hand, Mr Gonzales demonstrated, while in Australia, that he was prepared to provide, on more than one occasion, false information to the relevant Australian authorities in order to achieve his purpose of being permitted to remain and work in Australia, and the Tribunal is not fully persuaded, by reason of his recent crime-free conduct in the Philippines or otherwise, that he would not be prepared to behave similarly in Australia in the future.
Having regard to the abovementioned considerations and findings, and having regard to (in particular) paras 1.9 and 1.11 of the Direction, the Tribunal is not satisfied that Mr Gonzales passes the "character test" (as defined in s 501(6) of the Act) within the meaning, and for the purposes, of s 501(1) of the Act. Accordingly, the discretionary power to refuse to grant a visa, conferred by s 501(1), is enlivened in this case, and it is to the matter of the appropriate exercise of that discretionary power that the Tribunal now turns.
The exercise of the discretionary power to refuse to grant a visa
Part 2 of the Direction relevantly states:
"2.1     If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2      The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3-2.16 and other considerations are set out at paragraphs 2.17-2.24. 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.
PRIMARY CONSIDERATIONS
2.3      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.
Protection of the Australian Community
2.4      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. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5      The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen 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).
a. The seriousness and nature of the conduct
2.6It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
…
(b)organised criminal activity resulting in a conviction in Australia or elsewhere;
(c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
(d) sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence;
(e)armed robbery (including robbery involving the use of imitation weapons), home invasion;
(f) murder, manslaughter, assault or any other form of violence against persons;
(g) terrorist activity;
(h)kidnapping;
(i) blackmail;
(j)extortion;
(k)arson;
(l) serious theft (including 'white collar' crimes):
…
(m)crimes against children;
…
(n) any other crimes involving violence or the threat of violence;
…
(o)ancillary offences in respect to any of the above offences, …
2.7 It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:
(a)the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)the repugnance of the crime:
…
2.8When exercising discretion, decision-makers must also take the following factors into account as relevant considerations:
(a)any relevant factors provided by the non-citizen as mitigating factors;
(b)the offence is not classified as an offence in Australia.
…
(c)a lighter sentence would be incurred in Australia for a similar offence; or
(d)the non-citizen has been pardoned:
…
2.9…
b. Likelihood that the conduct may be repeated (including any risk of recidivism)
2.10It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
c. General deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b)the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen 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. Decision-makers should have due regard to the Government's view in this respect.
The best interests of the child
2.13This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.
2.14Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.
2.15In general terms, the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to:
(a)any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
2.16When considering the best interests of the child, decision-makers should have regard to the following:
(a) the nature of the relationship between the child and the non-citizen;
(b)the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)the age of the child;
(d)whether the child is an Australian citizen or a permanent resident;
(e) the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen's prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.
OTHER CONSIDERATIONS
2.17     When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
…
(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
·     In assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)       family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)       any evidence of rehabilitation and any recent good conduct;
(i)        whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
…".

The 1st primary consideration – protection of the Australian Community

As regards the seriousness and nature of Mr Gonzales' relevant conduct, the Tribunal notes that, included in the examples of offences which are considered by the Government to be "very serious", are serious crimes against the Act and the making of false or misleading statements in connection with entry or stay in Australia: see para 2.6(c) of the Direction. The Tribunal has found (see paragraph 51 above) that Mr Gonzales made false or misleading statements to the relevant authorities in connection with his application for a protection visa and his subsequent application to the RRT for review of the adverse decision of the Department on that original application. Furthermore, the Tribunal has noted (see paragraph 52 above) that that conduct may have constituted a contravention of s 234(1) of the Act (the prescribed penalty for which is imprisonment for 10 years or 1,000 penalty units, or both). The Tribunal has also noted that, by remaining and working in Australia from January 2000 to April 2000, Mr Gonzales may have committed an offence against s 235(3) of the Act (the prescribed penalty for which is a fine not exceeding $10,000.00).
The Tribunal regards Mr Gonzales' conduct in making false or misleading statements to the Department and to the RRT in connection with his application for a protection visa as a very serious matter. In the Tribunal's opinion, furthermore, there were no significant mitigating factors in respect of that conduct.
As regards Mr Gonzales' remaining and working in Australia from January 2000 (following the adverse decision of the RRT on 17 December 1999) until April 2000, however, the Tribunal notes that he was never formally advised by the Department that he was required to leave Australia and accepts that he was, at the very least, in a state of uncertainty regarding his migration status during that period. The Tribunal regards this as a mitigating circumstance in relation to Mr Gonzales' remaining and working in Australian between January and April 2000. It may be that when Mr Gonzales remained and worked in Australia in that period, he did so by reason of an honest and reasonable mistake of fact which may constitute a defence to an offence against s 235(3) of the Act, notwithstanding that that offence is one of strict liability. That, however, is not a matter about which it is necessary or appropriate for the Tribunal to speculate here. Suffice it to say that the Tribunal is satisfied that there were mitigating circumstances in respect of his conduct of remaining and working in Australia between January and April 2000.
As regards the likelihood of Mr Gonzales' repeating the abovementioned conduct of providing false information to the Department or relevant review bodies, or committing other offences, if he is permitted to re-enter and remain in Australia, the Tribunal has already stated (see paragraph 53 above) that, given Mr Gonzales' preparedness in the past to engage in such conduct in Australia in order to achieve his desired objective, it is not fully persuaded, notwithstanding his apparent general good conduct in the Philippines since May 2000, that he would not be prepared to behave similarly in Australia in the future. On the other hand, given the subsequent experience Mr Gonzales has had in relation to his unsuccessful application to the Department for a spouse visa, and the absence of any criminal record both in Australia and in the Philippines, the Tribunal is not prepared to go so far as to express the opinion that it is likely that he would again engage in such conduct, or commit any other offence, if he were permitted to re-enter and remain in Australia. The Tribunal is of the opinion, however, that there is at least a real risk that Mr Gonzales may engage in such conduct in the future.
As regards the factor of general deterrence, the Tribunal is satisfied that a decision to refuse a spouse visa to Mr Gonzales by reason of his reprehensible conduct of providing false or misleading information in connection with his earlier application for a protection visa is likely to have the deterrent effect of discouraging other persons from engaging in similar conduct in connection with visa applications. The Tribunal notes that the applicant does not dispute that proposition.
Overall, chiefly by reason of the very serious nature of Mr Gonzales' misconduct (as discussed in paragraphs 56 and 57 above), the 1st primary consideration points towards an exercise of the discretion to refuse to grant Mr Gonzales' application for a spouse visa.
The 2nd primary consideration – expectations of the Australian community
As stated in para 2.12 of the Direction, the Australian community expects non-citizens to obey Australian laws (including migration laws) while in Australia. Likewise, it can reasonably be said that the Australian community expects that visa applicants will be honest, truthful and candid in relation to the information they provide to the Australian immigration authorities in support of their applications, and would not generally support the grant of a visa to an applicant who has provided false or misleading information in connection with their application (as occurred in the present case). In making a judgment regarding the expectations of the Australian community in Mr Gonzales' case, however, other relevant considerations – in addition to the seriousness of his abovementioned immigration misconduct – must be taken into account – including, in particular, the fact that he is genuinely married to an Australian citizen (the applicant – see paragraph 71 below) who is living in Australia and that they have a young child who is an Australian citizen and is living in Australia with his mother (the applicant), and that he has not committed any other offences either in Australia or in the Philippines. In the Tribunal's opinion, having regard to all the relevant circumstances of Mr Gonzales' case, it would not be the expectation of the Australian community that Mr Gonzales should be prevented from re-entering and remaining in Australia to be with his wife and their child.
Accordingly, the 2nd primary consideration does not point towards an exercise of the discretion to refuse to grant Mr Gonzales' application for a spouse visa. On the contrary, on balance it points towards an exercise of the discretion to grant that application.
The 3rd primary consideration – the best interests of the child
Mr Gonzales and the applicant have a child (Michael) who was born on 24 April 2001 in Perth and is an Australian citizen. Since his birth Michael has lived with the applicant in Perth. In July 2002, however, Michael was taken by the applicant to the Philippines to meet Mr Gonzales for the first time and, according to the applicant's evidence, they spent the entire 3 weeks' duration of that visit together as a family during which a very close bond was developed between Michael and Mr Gonzales, and that bond has been maintained since their return to Australia by way of telephone conversations between Michael and Mr Gonzales, and as a result Michael has become a "happier and more settled" child. The Tribunal notes that these important developments in relation to the 3rd primary consideration have occurred relatively recently – long after the decision of the delegate (on 16 October 2001) which is presently under review.
As indicated in para 2.15 of the Direction, a child's best interests will generally be served if the child lives with, and is raised by, both parents. The Tribunal is not aware of any "countervailing considerations" which would displace that general rule in the present case. The Tribunal is of opinion that it would clearly be in Michael's best interests if he were to live with, and be raised by, Mr Gonzales and the applicant as a family unit in Australia. It was, however, submitted by the respondent that it was open to the applicant to relocate with Michael either to the Philippines or to New Zealand and to live in either of those countries with Mr Gonzales. As regards the Philippines (where Mr Gonzales presently resides), the Tribunal is prepared to infer that Michael would be disadvantaged in terms of educational opportunities and available health care, and his general standard of living and quality of life, if he were to live in the Philippines as compared with Australia, and that in those respects it would also be in his best interests to remain in Australia. In this connection the Tribunal notes, and understands, the applicant's intention nevertheless to remain in Australia with Michael if Mr Gonzales is refused a spouse visa. As regards New Zealand, the Tribunal is prepared to infer that educational opportunities and the standard of available health care, and the general standard of living and quality of life, are comparable to those in Australia and that Michael would not be significantly disadvantaged if he were to live with Mr Gonzales and the applicant in New Zealand rather than in Australia. The Tribunal is, however, unaware whether Mr Gonzales would be permitted by the New Zealand immigration authorities to enter and remain in New Zealand, and, accordingly, it can only speculate as regards the possibility of Mr Gonzales, the applicant and Michael being able to live together as a family unit in New Zealand.
The respondent submitted that Michael's best interests are outweighed by the need to protect the Australian community from the kind of immigration misconduct engaged in by Mr Gonzales in this case and that if a visa were to be granted to Mr Gonzales because he has an Australian citizen child, this may indicate to prospective visa applicants that the provision of false information to the Australian immigration authorities will not be a bar to their being granted a visa if they have an Australian citizen child, thereby encouraging such persons to have such children for that purpose. In the Tribunal's opinion, that submission is somewhat speculative but, even if it were well-founded, it would not, in the Tribunal's view, detract from the proposition that, in the present case, Michael's best interests would be served by his living with, and being brought up by, Mr Gonzales and the applicant as a family unit in Australia: see Re Said-Chidiac and Department of Immigration and Multicultural Affairs (1998) 52 ALD 700 at 701, 703. The Tribunal accepts Mr Gonzales' evidence, which it regards as genuine and sincere, that he wants to be with Michael and that, if given the opportunity to be with him and the applicant in Australia, he would do all he could to assist in his upbringing and would work hard in order to provide financially for them.
In the Tribunal's assessment the 3rd primary consideration points very strongly against an exercise of the discretion to refuse Mr Gonzales' application for a spouse visa.
Overall assessment of the 3 primary considerations
Having regard to each of the 3 primary considerations and to the above discussion in relation thereto, the overall assessment of the Tribunal is that the 1st primary consideration (the protection of the Australian community), which points towards a refusal of Mr Gonzales' application for a spouse visa, is clearly outweighed by the 3rd primary consideration (the best interests of the child) which points very strongly against such a refusal. The 2nd primary consideration (the expectations of the Australian community) does not point strongly either towards or against a refusal of Mr Gonzales' spouse visa application but, on balance, points against such a refusal.
Accordingly, the Tribunal's overall assessment of the 3 primary considerations, as applied to the circumstances of the present case, is that, on balance, they clearly point against an exercise of the discretion to refuse to grant Mr Gonzales' application for a spouse visa.
Other relevant considerations
Paragraph 2.17 of the Direction refers to various other considerations which, where relevant, should be taken into account but which generally should be given less individual weight than that given to the primary considerations.
The applicant referred, in particular, to the considerations set out in subpara (c) of para 2.17 of the Direction, namely, the "hardship which would be caused to immediate family members lawfully resident in Australia" in the event of a refusal to grant a spouse visa to Mr Gonzales. The applicant is married to Mr Gonzales and the Tribunal accepts that their marriage is a genuine one (as found by the MRT in its decision on 28 March 2001 referred to in paragraph 20 above). The applicant, who was a New Zealand citizen by birth, became a naturalised Australian citizen in May 2002 (Exhibit A5). The Tribunal also accepts that, despite the physical separation between the applicant and Mr Gonzales for most of the period since he returned to the Philippines in April 2000, they have a strong marital commitment to each other, and a strong parental commitment to their only child, Michael. The Tribunal acknowledges that the applicant and Michael are not dependent on Mr Gonzales for financial support and that the applicant, according to her own evidence, would ultimately choose to remain in Australia with Michael rather than to move with Michael to the Philippines to live with Mr Gonzales, if she were put in the difficult position of having to make that choice. The Tribunal also acknowledges that the applicant and Michael have visited Mr Gonzales in the Philippines and that, if Mr Gonzales were to remain in the Philippines, they would probably be able to visit him for a short period each year (albeit at a significant financial cost to the applicant). Notwithstanding those considerations, however, the Tribunal accepts that the applicant and Michael would suffer substantial emotional hardship by reason of their separation from Mr Gonzales if Mr Gonzales were refused a spouse visa or were otherwise refused permission to be in Australia.
Having regard to the other relevant considerations in this case including, in particular, the hardship consideration discussed in the preceding paragraph, the Tribunal's assessment is that those considerations, like the primary considerations discussed above, on balance point against an exercise of the discretion to refuse to grant Mr Gonzales' application for a spouse visa.
Conclusion
Having had regard to the abovementioned primary and other relevant considerations specified in the Direction, the Tribunal concludes that, notwithstanding Mr Gonzales' reprehensible conduct in providing false information to the Department and to the RRT during the period from December 1997 to 1999 in connection with his application for a protection visa, the correct or preferable decision in this case is that Mr Gonzales' application for a spouse visa should not be refused in exercise of the discretionary power conferred by s 501(1) of the Act. The Tribunal has reached that conclusion chiefly on the basis that such a decision would be in the best interests of Michael, Mr Gonzales' and the applicant's only child who is now 17 months old.
Decision
For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the application by Renie Gonzales for a combined Class UF Subclass 309 Spouse (Provisional) and Class BC Subclass 100 Spouse (Migrant) visa should not be refused pursuant to s 501(1) of the Act.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .........(sgd V Wong)........................................
  Associate
Date of Hearing  5 September 2002
Date of Decision  4 October 2002
Counsel for the Applicant        Mr L Fee
Counsel for the Respondent    Ms C Wallwork
Solicitor for the Respondent    Blake Dawson Waldron