Mackney and Minister for Immigration and Multicultural Affairs - [2001] AATA 472

DECISION AND REASONS FOR DECISION [2001] AATA 472

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/277

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PHILLIP JAMES MACKNEY
  Applicant
           And    MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal S P Estcourt Q.C., Deputy President

Date31 May 2001
PlaceSydney

Decision The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that the visa application not be refused under section 501 of the Act.
.

[sgd] S P Estcourt, Q.C.
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa sub-class 309 – refusal to grant – character test – whether visa applicant's past general conduct amounts to providing false or misleading information in connection with an application for the grant of a visa or in an approved form – whether past conduct shows a deficiency in enduring moral qualities such as to make it for the public good to refuse entry – in the event of failing to pass the character test, whether a discretion not to refuse to grant visa should be exercised
Migration Act 1958 – ss417, 499, 501
Aksu v Minister for Immigration and Multicultural Affairs [2001) FCA 514

REASONS FOR DECISION

S P Estcourt Q.C., Deputy President

This is an application by Phillip James Mackney ("the Applicant") for the review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs ( "the Respondent") pursuant to section 501 of the Migration Act 1958 ("the Act") to refuse the grant of a Spouse Visa, sub-class 309 to the Applicant's wife Gladys Obra Mackney ("the Visa Applicant").
The delegate's decision of 10 January 2000 was made on the basis that the Visa Applicant was not of good character in relation to her past and present general conduct and thus did not pass the "character test", and that the Visa Applicant had not persuaded the delegate to exercise her residual discretion under section 501(1) of the Act.
The relevant provisions of section 501 of the Act are:
"501(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.
…
501(6) For the purposes of this section a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the persons past and present criminal conduct;
(ii) the persons past and present general conduct; the person is not of "good character."" (emphasis added)
Thus it can be seen that the exercise of power under section 501 of the Act involves, first, a consideration of whether the Visa Applicant is of good character and second, whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the Applicant in the event of his or her failure to pass the character test.
In the exercise of its jurisdiction, the Tribunal is bound to consider a number of factors specified by the Minister's Direction No 17, made under section 499 of the Act, which provides guidance to decision makers in making decisions to refuse or cancel a visa under section 501 (see however, Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4May 2001)).
Paragraph 1.9 relevantly provides:
"In considering whether a non-citizen is not of good character against sup-paragraph 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:
…
(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 sub-section 501 of the Act, about the non-citizen's character or conduct or both;
…"
The following facts set out in the Respondent's amended statement of facts and contentions dated 1 May 2001 were accepted by the Applicant:
"1Ms Gladys Mackney, the Visa Applicant, is a Filipino citizen who arrived in Australia on 22 May 1996, holding a Visitor's Visa valid for three month.
2On 24 May 1996 Ms Mackney lodged an application for a Protection Visa with the Department of Immigration & Multicultural Affairs ("DIMA").
3Ms Mackney claimed that she had been harassed by the New People's Army ("NPA"). In particular, she claimed that she was the object of romantic advances from an obsessive NPA leader. She said that she feared being raped, tortured or kidnapped. Furthermore, she claimed that the authorities were neither willing nor able to protect her.
…
5On 20 November 1996, a DIMA delegate refused Ms Mackney's application for a protection visa. The delegate found that she faced only remote chance of persecution in the Philippines.
6On 16 December 1996, Ms Mackney applied to the Refugee Review Tribunal ("RRT") for a review of the delegate's decision. Ms Mackney repeated her claims of persecution and at no stage did she volunteer the information that those claims were untrue. On 21 July 1997, the RRT refused Ms Mackney a protection visa, finding that she could internally relocate if she felt threatened by the NPA.
7On 18 August 1997, Ms Mackney wrote to the Minister for Immigration and Multicultural Affairs ("the Minister") seeking his assistance under section 417 of the Act. By a letter dated 17 April 1998, Ms Mackney was advised that the Minister had declined to exercise his discretion under the Act. On 19 May 1998 Ms Mackney again sought the intervention of the Minister under section 417 of the Act. However, on 7 July 1998 the Minister again declined to intervene on her behalf. From the time she applied for a protection visa until she ultimately left Australia, Ms Mackney also held a series of bridging visas. The basic purpose of which was to keep her immigration status legal while her various applications were being considered. From August 1997 onwards, Ms Mackney was not permitted to work.
8On 8 August 1998 Ms Mackney and the Applicant were married. On 5 November 1998, she was detained by DIMA authorities and on 7 November 1998, Ms Mackney departed Australia for the Philippines. On 22 January 1999, Ms Mackney applied for a Spouse Visa, sub-class 309 ("the Spouse Visa") in Manila. The application was sponsored by her husband, Mr Phillip Mackney ("the Applicant").
9Ms Mackney was interviewed twice by Australian Embassy staff in Manila. The first occasion was on 9 February 1999 and the second was on 21 September 1999. During the course of those interviews she admitted that she had exaggerated the story about the NPA. She said that she had sought a protection visa in order to be able to work. She admitted that what she did was wrong and she said she was remorseful for this.
10On 10 January 2000, the delegate, Ms Sally Raey-Young refused Ms Mackney the Spouse Visa on the grounds that she was not of good character.
I should say at once that notwithstanding that the Applicant's solicitor and counsel accepted the fact set out in paragraph 9 above, that Ms Mackney told Australian Embassy staff in Manila that she had sought a protection visa in order to be able to work, it is not a completely accurate statement.
The only evidence relied on by the Respondent as to this was contained in the "case dump", or retrieved abbreviated diary notes, of interviews between members of the Australian Embassy staff in Manila and Ms Mackney.
An examination of the whole of the 27 entries in the case dump makes it clear that Ms Mackney admitted that she had completed the application for a protection visa herself and wrote the story, that her solicitor read the story, added and exaggerated the condition, "which was not as bad as how it was written by the solicitor", and that Ms Mackney "pursued" with it anyway because she wanted to work and she admitted to Embassy staff that what she did was wrong and apologised for that. A fair reading of the entire case dump however demonstrates that Ms Mackney, who was at the time a school teacher near "the mountains" was afraid "of the NPA's", but also applied for a protection visa because she wanted to work.
Two things should be borne in mind about the material contained in the case dump. The first is that there can be nothing false or misleading about a valid and a truthful visa application, notwithstanding that it may also be motivated by a desire to work. The second is that the material contained in the case dump is hearsay evidence and Ms Mackney gave oral evidence before the Tribunal upon which she was cross-examined.
Before the Tribunal, Ms Mackney stated in evidence in chief:
"Why did you apply for a protection visa?…Because I got afraid of the NPA, remember that I went to the…that was not…
Can you tell us exactly what you were afraid of from the NPA?…Because they were so powerful and I was afraid, I was scared of what they might do against me.
What led you to have that fear?…Because at that time, remember we were under the control of the Government before but in control areas like in our province there was still some action from the NPA, there hasnt been control this Government.
I understand that, but was there any particular incident directed at you by any member of the NPA?… The one that I meet?
Yes…Yes
Could you explain that to us please?…Because he was, he said he was gonna do anything that he could to get me."
Under cross-examination, Ms Mackney provided the following answers:
"You have also said in your latest statement that the claims you made in your protection visa were exaggerated by your solicitor, is that correct?…Because the one who interviewed me asked me who wrote the letter. I said, I wrote the letter but it was corrected by my solicitor.
I think you said in your statement, and I am quoting here:
"The story regarding the NPA member was true. I met him when still working as an elementary school teacher in Nativitad…But not as dangerous as the story made by my solicitor."
That is what you said, isn't it?…Yes sir.
Ms Mackney, I understand that you are saying, you are accepting that your claims were misleading, is that correct?… It is not misleading, because when I was interviewed they asked me, your story is exaggerated? It/s not as much danger as of what actually happened…
During the interview, you admitted to the immigration authorities in Manila that the situation in the Philippines, for you, was not as dangerous as the story made by your solicitor, that's correct isn't it?…Yes."
In re-examination, Ms Mackney provided the following answer:
"Mrs Mackney could I ask you to speak as loudly as you can and to speak slowly, please, because this is a very important point. You have told us that when you told your story to the solicitor, the solicitor exaggerated, is your word, the story. In what way did your solicitor exaggerate the story?…I wrote the story that, I put, I write there that the solicitor might, I was afraid of the NPA that they might do something against me. She said that, they might kill you or torture you, she said, yes. I just said yes they might going to kill me or torture me, because the NPA's are so dangerous and you don't know what they've got in mind." (emphasis added)
The Respondent accepts that the only issue in this application is whether Ms Mackney is of good character. The Respondent submits that she is not , in summary, for the following reasons:
Ms Mackney lodged her application for a protection visa knowing that it contained false and misleading information concerning the NPA and knowing that the provision of false information was the subject of penalties under the Act.
Ms Mackney made the protection visa application with the intention of obtaining work rights in Australia.
Ms Mackney did not avail herself of any opportunity after the protection visa application was made and during the various processes of appeals and reviews which followed, to inform the Minister that her claims of harassment were untrue. Rather she repeated and elaborated upon those claims.
At no stage after August 1997 did Ms Mackney have permission to work, when in fact she worked at Clints until October 1997 and again in November 1998.
That Ms Mackney when interviewed by DIMA officers at Villawood Detention Centre on 6 November 1998 admitted working for two weeks while she was in Australia, whereas in her application for the spouse visa Ms Mackney admitted that she had worked in Australia in July 1996 until October 1997.
In my view these submissions can be distilled to four primary concerns:
Ms Mackney made false and misleading statements in connection with a visa application.
Ms Mackney provided false information to DIMA on interview on 6 November 1998.
Ms Mackney made her original application for a protection visa and subsequent appeals because she wished to work.
Ms Mackney worked without permission.
The meaning of "good character" as used in section 501 of the Act was explained by the Full Court of the Federal Court in Goldie v MIMA 14 September 1999 Unrep at paragraphs 5-7. There Spender, Drummond and Mansfield JJ said:
"The concept of "good character" in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry." (emphasis added)
I am not satisfied on the evidence that Ms Mackney's enduring moral qualities are deficient in that sense or that her past general conduct amounts to providing false or misleading information in connection with the application for the grant of a visa or in an approved form.
At worst, what Ms Mackney did was to accede to the suggestion made, by a solicitor of the Supreme Court of New South Wales, to articulate her genuine fear of what "the NPA" in the form of a particular NPA officer "might do against" her in a particularised statement that her fear extended to death or torture or worse.
If I am wrong in my view that such conduct, whilst it may amount to "gilding the lily", is not false or misleading in the sense contemplated by the Direction, but rather putting one's genuinely held fear into the highest possible explicit terms, then in my view "the countervailing factor" which would militate against the finding that the Visa Applicant is not of good character within the meaning of paragraph 1.9 of the Direction is that what Ms Mackney did, she did at the suggestion of a solicitor in whom Ms Mackney, as a non-citizen, could be expected to repose trust and confidence as to the legitimacy of the suggestion made to her.
In my judgment such action on the part of Ms Mackney does not show a deficiency in her enduring moral qualities such as to make it for the public good to refuse her entry.
Given that it follows that in my view Ms Mackney's application for a protection visa was genuinely made, the existence of a concurrent desire to work in Australia does not, as I have already indicated, add anything to the equation.
As to Ms Mackney working without permission, again, I am not satisfied it amounts to past general conduct rendering her not of good character.
During the period Ms Mackney was working at Clint's between August and October 1997, her evidence was that she had made several attempts to obtain permission to work and this of course must be seen against the background that she worked quite legally for the same organisation from July 1996 until August 1997.
The other period concerned must by definition be a very short period prior to 5 November 1998 as it was after Ms Mackney married the Applicant in August 1998 and after she had recovered from a broken foot suffered shortly after the wedding. At that time I infer Ms Mackney may well have expected that her immigration position would be different because of her marriage.
The period involved was not the subject of any precise evidence but, given the date of the marriage and the subsequent injury, it is altogether consistent with her statement to DIMA officers on interview on 6 November 1998 that she had only worked for two weeks.
I am not satisfied that that statement was an intentionally false or misleading statement. It may well have been intended to refer only to the period she had worked at Clint's since leaving there in October 1997 over a year earlier.
Similarly, I am not satisfied that a statement in her subsequent spouse visa application which omitted mention of that period of work, but covered the legitimate period of work from July 1996 to October 1997, was intentionally false or misleading.
It follows that I am not satisfied, having regard to Ms Mackney's past or present general conduct, that she is not of good character so as not to pass the character test for the purpose of section 501 of the Act.
The decision under review is therefore set aside and the matter is remitted to the Respondent for reconsideration with a direction that the visa application not be refused under section 501 of the Act.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of S P Estcourt Q.C., Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  2 May 2001
Date of Decision  31 May 2001
Solicitor for the Applicant         R Turner
Solicitor for the Respondent    M Grey