Manlangit and Department of Immigration and Multicultural Affairs - [2000] AATA 400

DECISION AND REASONS FOR DECISION [2000] AATA 400

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N99/1519

GENERAL ADMINISTRATIVE DIVISION       )
           Re      VIRGILIO MANLANGIT
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date22 May 2000
PlaceSydney

Decision       The decision under review is affirmed.
  ..............................................
  BJ McMahon
  Deputy President

IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – failure to meet character test – fabrication of basis of refugee status application – disregard for immigration law
Migration Act 1958 - s 501(6)
Migration Act 1958 – s 234(1)(b)

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

This is an application to review a decision of a delegate given on 26 August 1999, refusing a spouse visa to Marites Bautista, the wife of the abovenamed applicant. The decision was made pursuant to section 501 of the Migration Act 1958 on the grounds that Ms Bautista did not meet the character test set out in that section. Subsection (6) provides that a person does not pass the character test if, having regard to that person's past and present general conduct, the person is not of good character. It was alleged that Ms Bautista failed the character test on this ground.
The applicant, Virgilio Manlangit was born on 11 February 1957 in the Philippines. He came to Australia in December 1992 with his then wife, and their two children, Virgilio Junior and Angelita. Mr Manlangit and his two children are Australian citizens, having acquired that status on 7 March 1995.
Mr Manlangit had married his first wife in 1982. They separated in 1995 after the family had moved to Australia. On Mr Manlangit's account, the former Mrs Manlangit simply left the matrimonial home and her family. They were divorced in 1997 when custody of the two children was awarded to Mr Manlangit. The former Mrs Manlangit has access to the two children for five and a half hours each fortnight. The evidence from the older child (now aged 17) was that they see their mother in a public place each fortnight, usually at Canterbury library. Sometimes she takes them to lunch. On his estimate, they see her for no more than half an hour each fortnight. The former Mrs Manlangit has since re-married but does not have any other children.
Early in 1997, Mr Manlangit was asked by some of his friends whether he could help in finding employment for Ms Bautista. She was qualified as a nurse in the Philippines and was then visiting Australia. With Mr Manlangit's help, she obtained casual employment at a nursing home in Canberra and later in Sydney at Milsons Point. After some two or three weeks he met her at a party. At that stage he did not ask her about her immigration status. They continued to see each other. Ms Bautista told Mr Manlangit that she had come to Australia to attend the wedding of her brother's son and was in fact living with that same nephew. Some unspecified difficulties arose with her family (who lived at Blacktown, out of Sydney) and she was looking for other accommodation. Some time in November 1997, she moved in to the flat occupied by Mr Manlangit and his children. She had her own room for 4 or 5 months. Over that time, their relationship developed. According to Mr Manlangit it "blossomed" about February 1998. He then realised that a relationship with Ms Bautista would be good for his children. He did not give any thought to her immigration status or to what the future might hold for them.
In May 1998 a number of officers from the Department visited the flat. Mr Manlangit believes that it was as a result of anonymous information given to the Department by the nephew. The officers confiscated Ms Bautista's passport. She was at work at the time. During the whole of the period when Ms Bautista lived with Mr Manlangit and his family, she was working on call which came some two or three times per week at one or other of the nursing homes.
When she telephoned from the Canberra nursing home before returning, he told her what had happened and advised her to go to the Department at nearby Rockdale the following day to retrieve her passport. She took this advice. It was only as a result of this raid, he said (and I accept), that he became aware that she had immigration difficulties. It was then that she told him about her previous applications aimed at seeking appropriate permission to stay in Australia.
She had first come to Australia on 19 January 1997 on a three month visitor visa. Shortly before that visa was to expire, she applied for a protection visa on 9 April 1997 and claimed refugee status. This application was refused by the Department on 28 May 1997. That decision was affirmed by the Refugee Review Tribunal on 12 November 1997. On 14 April 1998 (about a month prior to the visit by Departmental officers) Ms Bautista's request for Ministerial intervention in her case on humanitarian grounds under section 417 was refused.
All this came as a surprise to Mr Manlangit. Nevertheless, I consider it inescapable that Ms Bautista would have told Mr Manlangit at least some of the reasons why she had applied for refugee status. She would not have simply given him the formal details and dates which I have earlier recited. When he asked her why she had not previously told him, she said "I did not want to give you more problems. In fact I did not expect you to be serious about me". They then "let it go" and did not discuss the matter further.
For some reason, which was left unexplained, Ms Bautista continued to stay in Australia until she was finally required to leave under supervision on 30 September 1998 to return to the Philippines. A fortnight later, on 15 October 1998, she applied for a spouse visa which was refused, after a long delay, on 26 August 1999. The two had planned to marry for some time and indeed, had given one month's prior notice to the Registry office. It happened, however, that the marriage took place some two days before she left Australia. It is this marriage and Mr Manlangit's sponsorship that form the basis of her application for a spouse visa.
Mr Manlangit said he married her because he loved her and because of the needs of his children. I accept (as all officers who have interviewed him accept) that there was a genuine relationship and that the marriage was not contrived so as to give Ms Bautista an opportunity to apply for a spouse visa. Although he may not have wished to face the fact, clearly he must have been aware that she was due to leave Australia two days after the marriage under some degree of compulsion. He must also have been aware that such an exit would guarantee that re-entry would be particularly difficult. Nevertheless, he took the important step of contracting a legal marriage, notwithstanding this knowledge of the possible future of their relationship.
Ms Bautista was interviewed at the Australian embassy in Manila on 21 October 1998 by an officer of the Department, Mrs Hokom. That officer made entries in the running file kept on Ms Bautista by the Department. These file notes are the only record of this and a subsequent interview. Mrs Hokom touched briefly on the protection visa proceedings. The note that she made was:
"Came to know about PV [protection visa] through his [sic] brother Medel Bautista applied in Apr 97 bec she wanted to have stay extended as she had problems (in the hospital where she worked, one of the directors had shown interest on her and was harrasing her). She applied personally, did not use a solicitor when appln was lodged, although they sought advice from a solicitor re procedures (Icao)."

The statement that a solicitor was not used when the application was actually lodged may or may not have been correct. The original application for a protection visa and its associated documents were not in evidence before me. Mrs Hokom, however, concerned herself principally with the relationship between Ms Bautista and Mr Manlangit in order to satisfy herself of its genuineness. She concluded the interview favourably and referred the file to a more senior officer for a decision.
That officer noted on the running file that Ms Bautista "fits profile of applicant of concern". He decided to refer the matter to another officer, Mr Vitnell, for a further interview. In the meantime, the file notes that there were continuous enquiries made by Mr Manlangit as to progress.
The second interview took place with Mr Vitnell on 1 June 1999. He recorded that Ms Bautista had told him as follows:
"… applied for a PV on fake grounds. Knew the reasons were Fake. She and her brother went to a solicitor somone last name David in Blacktown, to get advice on how she could extend her stay. She told him that she worked as a nurse and that this rich doctor had made unwanted advances to her when she was in Phil. He told to exaggerate all the story and use some political aspects otherwise DIMA would not consider her story. She and the lawyer knowingly concocted a bogus scenario where as a nurse she was working back one night at the hospital and she witnessed a shooting and the shooter was the son of a wealthy influential person in Phil so she fled. She said the "story was all crap". She signed the forms and knew it was bogus. She received a decision letter on the primary decision some time later and she went back to her lawyer who helped apply to the RRT using the same story. When the RRT invited her for an i/v she went to her lawyer who said he would fix so she did not have to attend. She received her decision from the RRT affirming the primary decision. Her lawyer said she would have to pay him $10,000 and he would fix all her papers. She didn't have the money and so she went to another lawyer Jessie Icao who for $500 said she should stick to her same story and he would prepare a letter to the minister (417), who decided no intervention on 17049B. PA was able to extend her stay until 300998 on BVEs."

As a result of statements which she is said to have made to him, he concluded that Ms Bautista had knowingly contrived to deceive the Department by lodging an application for a protection visa based on bogus grounds in order to extend her stay and work in Australia. He took into account that she began working and found work shortly after she received her bridging visa, which would automatically have been issued once she lodged an application for a protection visa. Mr Vitnell acknowledged that Ms Bautista had expressed sorrow for what she did in lying to the Department but "she wanted to stay, she didn't know what she was doing and she still thought she may have had a problem with the rich doctor's unwanted advances". Mr Vitnell recommended that the application be refused on character grounds and this is what eventually happened after many more enquiries from Mr Manlangit and, indeed, after a representation from his local Member of Parliament.
The basis of the refugee status application for a protection visa was entirely fabricated. The idea for the fabrication may have come from the first solicitor. It seems apparent, however, that Ms Bautista was a willing accomplice. The account of the interview with Mr Vitnell is the only evidence of this fabrication. It is clearly hearsay. However, in view of Mr Manlangit's evidence of his conversations with Ms Bautista, and in view of the fact that Ms Bautista has had many opportunities to deny the truth of what is alleged, I am prepared to accept what was said as evidence of the truth of the facts recited.
Ms Bautista had opportunities to retract the story and to give a true account, not only when she made her application, but also during the appeal to the Refugee Review Tribunal and in the course of the application to the Minister. She did not take advantage of any of these opportunities. One can only conclude that she knowingly broke the immigration law in an endeavour to obtain permission to stay in this country longer and to work during that period. In a letter to the Tribunal, Mr Manlangit submitted that she should be given credit for making the admission of her own free will. He also made the point that Ms Bautista was not the only person who had made a false declaration in order to stay in Australia. In my view, neither of these submissions have any merit. If anything, an admission of illegal conduct, which is said to be common, attracts particular censure if the integrity of the migration system is to be supported. I turn now to whether Ms Bautista has failed the character test, the first consideration in judging the decision against the criteria of the legislation.
In applying the character test, I am bound to follow the policy directions given by the Minister in Ministerial Direction number 17. Paragraph 1.9 of that direction requires that I am to consider "activities indicating contempt or disregard for the law" and in particular, breaches of immigration law or "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".
Clearly, Ms Bautista has shown a complete disregard for immigration law and, in my view, her conduct must be regarded as deliberate. She has not made any representations to this Tribunal since the rejection of the spouse visa. She was not called to give evidence by telephone. I have no knowledge as to whether that was deliberate or not. According to notes of an interview with Mr Manlangit held on 12 April 1999 at Rockdale, Ms Bautista has a telephone at home, she also has access to telephone in her sister's restaurant where she works, there is a telephone at her sister's home and a fourth telephone available at the home of Mr Manlangit's mother. Mr Bautista speaks regularly to Mr Manlangit and to both of his children. I can only assume that she chose not to give evidence in this application for her own good reasons. Had she been asked questions in cross examination, the answers to which might have tended to incriminate her, I would have been bound to advise her that she was not obliged to answer. However, as she chose not to give evidence at all, I am left to draw my own inferences. Certainly, her silence compels me to accept the Departmental version of the admissions she made at the second interview.
I find, therefore, that Ms Bautista knew and admitted that in lodging the protection visa application, she was wrongly applying for Australia's protection as a refugee. She has admitted that she did not consider that she was a refugee at any time prior to the lodgement of that application, or at any time during the processing of her application through the appeal and review processes. The sole purpose of the application was to extend her stay in Australia for as long as possible so that she could legally work under the provisions of a bridging visa associated with her application for a protection visa.
In my view, notwithstanding Ms Bautista's apparent remorse at the second interview, her past general conduct displays a blatant disregard for Australian immigration laws and, as such, she does not pass the character test. There is no evidence of any later or more current activities constituting present general conduct which would in any way diminish that finding.
There is a residual discretion which is enlivened notwithstanding the failure to pass the character test. Factors to be taken into account in the exercise of that discretion are set out in paragraph 2 of the Ministerial Direction. There are three primary considerations.
The first consideration is the protection of the Australian community. In considering the seriousness and nature of the conduct, I am to have regard to whether the visa applicant has committed a serious crime attracting a sentence of imprisonment of 12 months or more. If Ms Bautista were prosecuted and if proof could be brought to the criminal standard, she could be convicted of an offence under section 234(1)(b) of the Act relating to the making of a statement which, to the person's knowledge, is false or misleading in a material particular. If convicted, she could be sentenced to imprisonment for up to two years (or, since July 1999, for up to 10 years). The falseness of her application was compounded by her failure to retract the fabrications throughout the review process. There is no aspect of her conduct or any relevant mitigating factors provided by Ms Bautista which might indicate that discretion under this heading ought to be exercised in her favour.
The second primary consideration relates to the expectations of the Australian community. In considering this, the Ministerial Direction requires me to consider whether the non-citizen has obeyed Australian laws while in Australia. Clearly, this is not so. In considering the exercise of the discretion, I am not bound by the criminal standard of proof and what I say, of course, would not be binding in any criminal prosecution. For the purpose of an application under the Migration Act for review of a visa decision, however, it is sufficient that the Tribunal informs itself in such manner as it considers appropriate in the circumstances. I am satisfied that Ms Bautista deliberately provided false information with a view to engaging Australia's protection obligations and I am satisfied that the Australian community would expect such a situation to be dealt with appropriately.
The third primary consideration concerns the best interests of the child. Paragraph 2.16 of the Ministerial Direction is in these terms:
"When 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 the 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 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 …"

Mr Manlangit's son, Virgilio Junior is now aged 17. He gave evidence at the hearing. He is still at school and expects to obtain his Higher School Certificate at the end of the current year. He then hopes to move on to University where he will study commerce and law. He has casual employment as a shop assistant to help with expenses. He said that he had a happy relationship with Ms Bautista. He continues to write letters to her and to speak with her on the telephone. She has access to a computer and they "chat" to each other through that medium. Virgilio said that they chat about their general lives, about Virgilio's progress in cooking which Ms Bautista had taught him, about housework and about his health. He does not discuss immigration matters with her. He gave evidence that he would like to see her back. He considers that in growing up it is important to have a relationship with a mother or somebody in the mother's place. For this reason, he considered his relationship with Ms Bautista important. He considers his sister's relationship even more important. He does not wish to return to the Philippines. He has ambitions to be involved in family law. Although he might obtain admission to a university in the Philippines, his intended field of practice would be quite different.
Angelita, who is now aged 15, also gave evidence. She is in year 10 at high school. Currently she intends to proceed to her Higher School Certificate but is unclear what she wishes to do with her life after that. She too is in contact with Ms Bautista and carries on communications through the internet about general personal and health matters. She would like to see Ms Bautista return as a member of the family with whom she got on very well.

There is clearly a good relationship between both children and Ms Bautista. It has not been of long duration, however. For the bulk of their lives they lived with their father and their biological mother. It is really only in the last two years that Ms Bautista has played any part in their lives. Whilst it is clear that they would benefit from being reunited with her, the weight of other primary and other considerations indicates that refusal of the application would be the correct decision. The impact on the children would not be serious caused by her failure to return, compared with the impact on the community discussed under the other two primary considerations to which I have referred.
In addition to the primary considerations there are what are called other considerations in paragraph 2.17 of the Ministerial Direction. The relevant ones are as follows:
"(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community; 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;
…
(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."

I accept the genuineness of the marriage and the relationship between Mr Manlangit and Ms Bautista. I have to take account, however, of the fact that her immigration status was known to him prior to their marriage. When that step was taken he was fully aware that her application for a protection visa was groundless. He must have been aware, therefore, that there was a strong possibility she would not be allowed back into Australia. Notwithstanding this, the marriage took place some two days before her departure.
I accept that Mr Manlangit will suffer hardship from a refusal of the application. There was evidence by way of certificates from his local doctor that he has presented complaining of considerable worry, sleeplessness and mood disturbance. These are natural consequences and I have no difficulty in accepting them. They are reflected in the notes made in the running sheet of the continual enquiries which Mr Manlangit has made along the way. The doctor, however, also referred to the stresses "of maintaining a suitable domestic situation for his two children and the financial consequences of being the only breadwinner in the family". It could not be said with confidence that Mr Manlangit's ill health is due only to Ms Bautista's failure to obtain a visa.
There is no other evidence of hardship. Four of Ms Bautista's seven siblings live in the Philippines. She is therefore not without family support in her home country. One of her brothers lives in Australia. There is no evidence of any hardship to him which would be caused by a refusal of the visa. Ms Bautista's parents live in the United States of America.
On balance, I consider that the preferable decision is to affirm the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Date of Hearing  10 May 2000
Date of Decision  22 May 2000
Representative for the Applicant              Self-represented
Representative for the Respondent        Tim Ricketts