Mann and Minister for Immigration and Multicultural Affairs - [2000] AATA 791

DECISION AND REASONS FOR DECISION [2000] AATA 791

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/102

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RICHARD MANN
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date31 July 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd Dr D Chappell)
..................................
Deputy President
CATCHWORDS
CITIZENSHIP AND IMMIGRATION: subclass 301 (interdependent visa) - citizen of the Philippines - not a person of good character – past and present general conduct – worked illegally - lodgement of application for protection visa – application false – application refused – lodgement of second application – second application refused - request for ministerial intervention – request refused – allegation of fraud and malpractice on the part of migration agent - consideration of other general conduct – applicant not of good character -consideration of exercise of Tribunal's discretion – consideration of the need to protect the Australian community – need to send a strong deterrent message – consideration of the expectations of the Australian Community – legitimate expectation that visa applicant's conduct should not be rewarded – consideration of the effect of the separation on the applicant – acknowledged emotional hardship – decision affirmed
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Dumbrell v Minister for Immigration and Multicultural Affairs [2000] AATA
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Irving v Minister for Immigration, Local Government and Ethnic Affairs 1996 68 FCR 422Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 127
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780
Naidu v Department of Immigration and Ethnic Affairs (AAT 9753, 27 September 1994)
Oliver May v Minister for Immigration and Multicultural Affairs [2000] AATA 575
Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997)
May v Minister for Immigration and Multicultural Affairs [2000] AATA 480
Santos v Minister for Immigration and Multicultural Affairs [2000] AATA 567
Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575
Ngor v Minister for Immigration and Multicultural Affairs [2000] AATA 353

REASONS FOR DECISION

31 July 2000 Dr D. Chappell, Deputy President

BACKGROUND
Application and Hearing

This is an application by Mr Richard Mann (the review applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to refuse to grant to his partner, Mr Roberto Flores (the visa applicant) a subclass 301 (interdependent) visa. The refusal was based on a finding that Mr Flores was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Mr Nigel Dobbie, solicitor, represented Mr Mann at the hearing. Both Mr Mann and Mr Flores gave personal testimony to the Tribunal. The following witnesses also testified on behalf of the applicant:
Mr Peter Gambrill
Mr J. Seymour
Ms M. Cruz
Ms J. Cabasa
           Mrs A.O. Mann
           Ms C.A. Larkins
           Mr R. Amores
Ms Jodie Maurer, solicitor with the Australian Government Solicitor's Office, represented the respondent. No witnesses were called to testify on behalf of the respondent.
The Tribunal had before it documents filed for the purpose of s37 of the Administrative Appeals Tribunal Act 1975 (the T documents). A number of exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No.    Description    Date
A1      Statement Mr P. Gambrill   12/7/00
A2      Statement Mr J. Seymour 11/7/00
A3      Statement Ms M. Cruz       8/7/00
A4      Statement Ms J. Cabasa    8/7/00
A5      Statement Mrs A.O. Mann 8/7/00
A6      Statement Mrs C. Larkins   14/7/00
R1      Application for Review by RRT     13/12/96
R2      306 Application stamped received 26/10/92
R3      908 Application stamped received 26/10/92
R4      Mr R. Flores – reasons for application for refugee status        26/10/92
R5      Decision record and covering letter         23/4/93
R6      RRT decision and reasons for decision   22/6/95
R7 Migration Act 1958 s37 restriction on applications for entry permits
A7      Affidavit of Mr Nigel Dobbie and attachments

Circumstances Leading to Visa Refusal

The following general facts, and chronology of events, which led ultimately to the refusal by the respondent of the visa sought by Mr Flores were not in dispute between the parties. Mr Flores was born in the Philippines on 7 June 1952. He grew up in that country, completing his high school education in 1969. He then worked in a number of positions including employment from 1981-1987 as an editorial assistant and secretary on a magazine published by a religious order in the Philippines (see R2).
On 18 May 1987 Mr Flores arrived in Australia on a visitor's visa valid for a period of three months. Upon the expiration of this visa Mr Flores did not depart Australia and he remained in this country as an unlawful non-citizen. He also gained employment in September 1987 with Gunz Photographics Pty Limited as a data processing clerk. He remained employed with this company until eventually departing the country in 1999 under circumstances which will be described shortly (see T: 205 for employment record).
On 26 October 1992 Mr Flores lodged an Application for Refugee Status in Australia together with an Application for a Domestic Protection (Temporary) Entry Permit (see R2 and R3). The Tribunal notes that the latter document also contained an application for Mr Flores to engage in employment in Australia on the grounds of financial hardship. No mention was made in the application of Mr Flores' prior employment by Gunz Photographics Pty Limited, or of any possibility of gaining employment with this company. This application included a signed declaration by Mr Flores, dated 22 October 1992, stating that the information provided in the application was complete, true and correct in every particular. It was noted:
It is an offence for a person to make in, or in connection with or in support of, an application to an authorised officer for permission to work in Australia a statement that is false in a material particular.
THE OFFENCE IS PUNISHABLE BY A MAXIMUM FINE OF $1,000
(R3)
The refugee application was signed by Mr Flores on each page (see R2). It contained a declaration, sworn before a Justice of the Peace, on 21 October 1992. The declaration said:
I make this solemn declaration by virtue of the Statutory Declarations Act 1959 as amended and subject to the penalties provided by that act for the making of false statements in the statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
(R2)
In support of his claim to be a refugee Mr Flores lodged with his application a handwritten statement, dated and signed by him on 27 October 1992 (R4). The statement said:
My father was a trade of copra in the Philippines. In June of 1975, he was abducted and killed by the New People's Army (NPA), an outlaw rebel group out to seize governmental power by force. The NPA is a communist group. My father for sometime [sic] paid revolutionary taxes to the NPA in order to operate his business. However, the exactions demanded from him reached a point where he could no longer comply. Despite his plea for leniency, the NPA opted to burn down his warehouse. My father decided to cooperate with the military authorities in tracking down NPA men. It was on this account that his life ended.
As part of a church organization I was professionaly [sic] involved in several charitable missions, specially in the country side. These missions sought to assist the underprivileged members of our society. In the course of these visits, I learned from the people how the NPA abused and terrorized them. Obviously, human rights violations, the NPA could carry our their work with impunity.
My indignation towards the NPA had a personal as well as a nationalistic background. I resented what they did to my father and at the same time I feared for my people. Thus I undertook a personal campaign against the NPA. Joining me in this quest was a friend of mine, Mr Alberto Sanchez, who was equally concerned about the spread of communism in our country. Those in the missions we participated in, we talked to the people in the country side to join together and assist the authorities fight the NPA. We told them to stop paying revolutionary taxes and refuse any assistance for the NPA. We explained to them the evils that go into communism. Most of our weekends in fact were spent in remote Batangas [sic] (local government unit), alongside this effort. My public position against the communists began to surface so that by early 1987, I was attending interviews in radio programs. I took these opportunities to publicly criticize the communist movement in our country and urged our people to resist it. On March 1, 1987 I received a call from the NPA advising me that I have been sentenced to death by the NPA because I was an enemy of the people. My friend Alberto Sanchez told me he received a similar call a few days earlier. On the evening of March 2, 1987 while I was at a friends house in Laguna, I received word that my friend Alberto Sanchez was abducted by armed men while on his way home. He was never heard of since then. My mother pleaded with me to go into hiding. Sensing imminent danger to my life, I hid myself in a friends house. Eventually, I left for Australia. I seek the protection of the Australian Government because the Philippine government cannot guarantee my safety. I am in Australia because of a genuine fear for my life. Had I realized the refugee concept earlier, I would have lodged an application at a much earlier date. Being alone in Australia made it very difficult to obtain proper advise [sic]. I cannot return to the Philippines because I know that I return, I will be killed by the NPA.
(R4)
On 3 February 1993 Mr Flores attended an interview with a delegate of the Minister of Immigration and Multicultural Affairs. In March 1993 Mr Flores met Mr Mann for the first time in a gay sauna in Darlinghurst, Sydney (T28).
On 23 April 1993 the Minister's delegate refused the grant of a visa for refugee status (R5). The decision record repeated the claims which have already been cited, but also contained a summary of statements made to the delegate at the time of his interview with Mr Flores. These statements included the following:
He stated that he ended up talking on radio because influential people in the area helped him and encouraged him to do so. These people were residents of Laguna and Batangas. One was a lady named Inang from Baite, Laguna, who had a wood carving business from which he obtained wood carvings for the Church, who said she was an NPA victim too. She was influential because she was well known and popular, having three shops in Baite to which people from the local area and Manila came to get carvings.
He stated that he could not remember what the radio station was, because he only went on radio on one occasion. It was located in Baite, Laguna.
He stated that the radio program was a talk show late at night at about 9:30 to 10:00 pm, on which discussions and opinions were broadcast.
He stated that he was not the only one on the talk show, since his friend and Inang were also on radio with him. They talked of relevant things happening at that time.
I invited the applicant to specify how many radio stations were there.
He responded that in Baite, Laguna, it was a small town in the Laguna area.
I invited the applicant to specify where the radio station was located.
He responded that it was located somewhere in Cabayao, which was about 40 kms from Baite on the way back to Manila. He stated that Cabayao a suburb about the size of Bondi.
I invited the applicant to specify what the name fo the radio station was.
He responded that he couldn't remember, and he does not know how many radio stations were there.
I invited the applicant to specify when this radio appearance took place.
He responded that it happened in about November – December 1986.
He stated that there was no feedback for a some time after that from the NPA or from those affected by what he had said on radio. He kept going back from one parish to another, getting the views of the people in the area.
He stated that this was the time (in early 1987) when his friend was abducted, and the applicant was in Laguna too, and word spread in his place in San Juan that he too was being tracked by the NPA.
He sought advice from his supervisors on what he should do, and they advised him to leave the country and that they would help him to so [sic], and he then thought of coming to Australia because he had friends here. His supervisors then had his papers processed by their own travel agency.
He stated that he received news of his friends abduction in March 1987, and stated that the reason he was abducted was that he was more active in the fight against the communists, since he did all the talking and informed the government of the whereabouts of NPA operatives, which was information he gained from the surveillance and going out of his way to keep track of the operatives, including once posing as one of the NPA to infiltrate their organisation.
He stated that he didn't know more about what his friend did because he didn't tell him everything and he did not know what he did for a living. He had become friends with him as a fellow parishioner in the San Juan convent where he (the applicant) worked.
He stated that he began associating with his friend during the revolt against Marcos and the campaign of Cory Aquino, i.e. December 1985 – January 1986, and their friendship extended only to having political discussions together. It was only for a short time and was not a close friendship.
He stated that he would see his friend on weekends because his friend would ring him from time to time to find out if he was going into the countryside on mission work, and he would then often accompany him.
He stated that he was told in March 1987 by a member of his family that his friend had been abducted and not seen again, and he could not confirm or investigate this. He had been abducted a few days after receiving the threat.
He stated that the circumstances surrounding the threat to himself were that things go out of hand and he couldn't be himself any more, since he feared he would be the next victim so he then approached his supervisors. After his friend was threatened his family also received a threat to him. The threat to him took the form of a 'sort of a letter', although he doesn't know what form the threat to his friend took. The letter was hand delivered to his family and its contents were 'sort of threatening', stating 'watch out or you'll be next' hand-written in red ink. His family told him about the letter and gave it to him and he burnt it.
He stated that after he received the threat he started moving from place to place.
He stated that he applied to come to Australia one week after learning of his friend's abduction rather than after he had received his threat and had everything arranged by about ten days later on 18 March 1987.
I invited the applicant to explain what he knew about how the NPA went about killing or abducting people.
He responded that he didn't know much about that because he was not told much about that, and he did not have a chance to ask further.
I invited the applicant to explain what he knew about the circumstances of his own father's murder by the NPA.
He responded that he only knew that he had been killed in Batangas where he had his warehouse. Even his mother didn't know more details because she was the man's mistress and his first wife got the body. He did see the body in the casket, however, and it was unrecognisable.
I invited the applicant to comment on the proposition that it seemed strange for an organisation known for its practice of ambush-style assassinations as the NPA to warn someone before killing them.
He responded that this was not necessarily so, and that maybe it was just his luck that he was to be informed first.
(R5)
Asked by the delegate why he had waited five and a half years before applying for refugee status Mr Flores was reported to have responded:
[T]hat he did not know at the time that he could apply, since he had no proper guidance and no-one told him he could. He also did not want to let people know that he had overstayed his visa because he was afraid of the consequences. He needed to think it over and over and finally he was able to approach someone in the Philippine community. It did not occur to him to approach a government department or a solicitor or agency because he was afraid and not strong enough.
(R5)
In refusing Mr Flores' claim the Minister's delegate said, in part:
I find that the vagueness of the applicant at interview in relation to his claim of having spoken against the NPA over a radio program leads me conclude [sic] that the claim is not credible and to give little weight to it as a result. I do not accept that a person would appear on a radio program on only one occasion in his life and address the audience on a contentious and dangerous subject and yet have such a vague recollection of events that that person could not remember the name fo the radio station. I give little weight to his claim as a result.
I have considered the fact that the applicant waited for five and a half years after arrival in Australia before raising his concerns. In light of his claim that he fled to Australia expressly to escape the threat from the NPA and in view of his claim that he perceives this threat as inescapable and indefinite, I have difficulty in understanding why he waited for such a long time before approaching the Australian government with his request for protection against return to the Philippines. I do not accept his explanation that he was alone and without access in the community to advice about how to seek protection from return tot he Philippines. I consider it more likely that a fear as great as that claimed by the applicant would have motivated earlier inquiries. I find such behaviour to be inconsistent with having a genuine fear of persecution, and I am therefore unable to give weight to his claim of having such a fear on the grounds of his political beliefs.
Although I find the rest of the applicant's claims to be generally plausible, in the absence of other relevant factors to weigh substantially in his favour I find that the above considerations cause the balance of doubt to weigh too heavily against him to allow a finding that he does face, and is unprotected from, a real chance of persecution because of his political beliefs. I rather assess this chance as being remote.
(R5)
On 24 May 1993 Mr Flores sought review by the Refugee Status Review Committee of the decision refusing him refugee status (see R1). By the time this review was conducted on 20 June 1995 the Committee had become what is now known as the Refugee Review Tribunal (RRT).
On 1 September 1994 the Migration Reform Act 1992 (MRA), by amendment to the Act, introduced a visa known as a protection visa for people who seek protection as refugees (see section 36 of the Act). This visa replaces the visas and entry permits previously granted for that purpose. Section 39 of the MRA deals with transitional arrangements for applications which were lodged prior to 1 September 1994.
In effect, applications for refugee status and for refugee related entry permits which were made and not finally determined before 1 September are to be dealt with as if they were an application for a protection visa. Where a decision concerning such applications is subject to review on that date, as in the present case, the application is not finally determined before 1 September 1994 (see section 5(9) of the Act). Therefore, the Tribunal will deal with the applicant's application as if it were an application for a protection visa which has reached the same stage as the application for determination of refugee status (see Li and Liu v Minister for Immigration, Local Government and Ethnic Affairs, unreported, 13 April 1995).
The applicant appeared at a hearing before the Tribunal on 20 June 1995. He was accompanied by his adviser, Mr John Lingham.
(R6)

The Tribunal notes that Mr Mann was also in attendance at this hearing before the RRT. The same facts which have already been outlined in regard to the refugee claim by Mr Flores were repeated before the RRT. On 22 June 1995 the RRT affirmed the delegate's decision. In reaching this conclusion the Tribunal noted the following concerning Mr Flores' credibility:
The Tribunal has some doubts about the credibility of the applicant but considers that at the end of the day nothing turns on this. Even if the Tribunal were to accept everything which the applicant says, the Tribunal is of the view that any chance of the applicant suffering persecution on return to the Philippines is remote.
…
It is now some eight years since the applicant left the Philippines. In that time there have been many changes not least of which is the legalisation of the CPP and the consequent diminishing need for the CPP to have an active armed wing, the NPA. The applicant has never been harmed by the NPA nor has any member of his family. Furthermore, the NPA does not operate in all areas of the Philippines and the applicant would be able to locate to an area outside of their influence (see CISINFO document PHL00260, 20 August 1992).
In the light of all the evidence available in this case the Tribunal finds that there is not a real chance that the applicant would face persecution for one of the reasons set out in the Convention if he were now to return to the Philippines. The Tribunal therefore finds that the applicant is not a refugee.
(R6)
On 28 July 1995 Mr Flores again made application for refugee status. On this occasion he sought what is now known as a Protection Visa (866) (T8). In this second application Mr Flores gave the following reasons for leaving the Philippines (see T: 55):
I left the Phils [sic]. On May 17, 1987. I arrived in Sydney on May 18, 1987. I arrive on a visitors [sic] visa valid for three months. Once in Australia to seek ways to stay in Australia legally that I knew I didn't know any person to approach. When I left the Phils. The Marco regime was in decay. Following the assasination [sic] of Benigno Aquino in Aug.1983. The excesses of the Marcos regime included, salvaging, which was the unlawful killings of individuals & officials opposed to the Govt. The Phil. Army had increased substantially in size following the declaration of martial law which occured [sic] on the ambush of the Defence Secretary Ponce Enrile and the bombing of opposition politician in Plaza Miranda. The problem in the Phils. When I left was the increase in payback, killings, & political assasination [sic] by elements of the N.P.A. and Muslim members of the Moro Liberation Front. Corruption with both police and military made it very difficult to trust the authorities. Often, there was connivance and collaboration between elements of the police and militay [sic], the NPA and MNLF in political fundraising criminal acts, such as NPA taxes in rural areas. Business of farmers, abductions, cash robberies from banks & large businesses. Often provided with inside informations, … return to the Phils.
(T: 55)
The Protection Visa application, in addition to asking for information about why an applicant had left a particular country, also contained the following question:
What do you fear may happen to you if you go back to that country?
(T: 56)

Mr Flores answered this question in the following way:

I have been in Australia for the past 8 years I believe that if I returned to the Phils [sic]. I will be questioned by the authorities at Manila international airport. On my return as to the reasons & circumstances of me overstaying my original visa. I also allowed my Phil. Passport to expire in 1991. The problem with returning to the Phils. Is explaining to corrupt officials why my present circumstances exist. They create charges arising out of activities prior to individuals [sic] departure from the Phils. These charges are fake but will only be dropped after the payment of money. I could be detained, questioned and imprisoned without formal charges. I am concerned that the authorities may assumed [sic] that I have lodged a political refugee application to remain in Australia to the detriment of the Phil. Government, past and present.
(T: 56)

Mr Flores also signed a declaration concerning the truth and accuracy of the statements that he had made in this second refugee application. The declaration, made by Mr Flores on 27 July 1995, relevant to penalties being imposed under the Act for those who made false declarations (T: 61).
On 26 November 1996 the delegate of the Minister refused this second refugee application. On 31 December 1996 Mr Flores sought review of this second refusal by the RRT (R1). This application noted, in part, a change in the circumstances in the Philippines as the reasons for the application:
… Since I hade made my previous claims for the grant of a protection visa on 28th July, 1995, there has been a number of developments in relation to political events within the Philippines. There have been incidents of terrorism in both Manila and Cebu blamed on 'overseas' terrorists: The Philippine police have been informed that these terrorists come to the Philippines usually via Malaysia and originate in the Middle East usually from Iran and Iraq. However, the pattern of 'terrorists' activities indicate a similar pattern to that of former Pres. Ferdinand Marcos prior to the introduction of martial law in 1972 using paid agents to sway public opinion to provide the government with excessive power that once given could not be taken away.
(R1)
On 3 September 1997 the RRT affirmed the delegate's decision (T17). The Tribunal gave the following summary of the findings and reasons for this affirmation:
The Applicant's claims are generalised and although there is an inference that he could face a risk of harm he has not provided any reasons for that harm.
It is not enough that an Applicant may face a generalised risk of harm to come within the ambit of the Convention. There must be an element of discrimination for one of the five Convention reasons. In this matter the Applicant has advanced no claim that there is any such basis for his fear of harm. Therefore any fears he may have in this regard are not Convention based.
I have considered his claims to face problems at the airport if he returned to the Philippines. However, I prefer the information from the executive arm of the Australian government and, accordingly find that there is no 'real chance' that he faces any persecution at the hands of the Philippine officials on return.
In summary, I find there is no Convention reason for any fear the Applicant may have if he returns to the Philippines. I further find that the claims he has made that he may face difficulties at the hands of the Philippine authorities on return are nothing more than fanciful speculation.
(T: 113-114)
On 30 September 1997 Mr Flores sought the exercise of the Minister's discretion under s417 of the Act. On 24 October 1997 Mr Flores was also listed as a group member of a representative proceeding in the Federal Court of Australia. On 19 January 1998 the Minister declined to exercise his discretion. On 20 June 1999 the representative proceeding was determined by the High Court in a way which was unfavourable to Mr Flores. On 7 August 1999 Mr Flores departed Australia for the Philippines. It should be noted that he had remained lawfully Australia from at least 28 July 1995, and most probably from 1 September 1994, until the date of departure as a result of the various bridging visas that he was granted during the time of his stay in this country.
Mr Flores applied for an interdependent visa in the Philippines on 5 August 1999 (T28). This application was sponsored by his partner, Mr Mann. On 9 August 1999 and 10 September 1999 Mr Flores was interviewed by officials of the respondent at the Australian Embassy in Manila (see T: 5). On 23 December 1999 the Minister's delegate, Ms Sally Reay-Young, refused to grant Mr Flores an interdependent visa on the grounds that he did not pass the character test under s501 of the Act. The Minister's delegate also declined to exercise the discretion under s501 of the Act. In reaching this decision the Minister's delegate gave the following summary of the background which led to the refusal:
BACKGROUND
2.On 18/5/87 the applicant entered Australia on a visitor visa for stay until 16/8/87. He did not depart Australia upon expiration of this visa.
3.On 28/7/95 the applicant applied for a protection visa. This application was refused. He applied for a review of the primary decision at the RRT. Refusal was affirmed by the RRT on 3/9/97. He requested ministerial intervention under section 417 which was declined 19/1/98. He departed Australia 7/8/99.
4.As part of the processing of Mr Flores' current interdependency application he was interviewed at the Embassy in Manila on 9 August 1999 and on 10 September 1999. During the course of these interviews the applicant admitted that he knowingly applied to remain in Australia on false grounds by submitting a Protection Visa (PV) application that he knew contained false information relating to his reasons for seeking Australia's protection. He admitted that he lodged this application in order that he could stay and work.
5.The applicant admitted that he knowingly pursued his PV application which was based on false information through all stages of the process including a final request under s.417 to the Minister to exercise his discretion to let him remain in Australia on humanitarian grounds.
6.At interview the applicant admitted that his agent helped him make up a story for his PV application. He admitted that his claims were bogus but he wanted to work. He received a primary decision on 25/11/96 refusing his PV application.
7.He again said that he knew the details in his application were false and it was illegal to attempt to remain in Australia by deceiving DIMA, the RRT and the Minister. But as he wanted to work and remain in Australia he applied to the RRT for a review of the primary decision using the same false claims. He received the RRT decision affirming the primary decision and with his solicitor lodged a 417 request, which was declined. At no time did he indicate that he was not knowingly complicit in this course of action.
8.The applicant met and established a relationship with Mr. Richard Sidney Mann, an Australian citizen, during his stay in Australia.
9.The applicant departed Australia on 16/5/99.
(T: 8-9)
After citing these background facts Ms Reay-Young went on to make the following assessment of Mr Flores' past general conduct:
11.I have taken into account the following considerations in assessing the past general conduct of Mr Roberto Flores:

He freely admitted to knowingly providing false information in his application for a PV;
He knew and has freely admitted that in lodging the PV application he was wrongly applying for Australia's protection as a refugee;
He freely admitted that he did not consider he was a refugee at any time prior to the lodgement of his PV application or, at any time during the processing of his application;
DIMA and the Refugee Review Tribunal (RRT) contacted him in writing on a number of occasions and he attended an interview where he maintained that he was a refugee;
Notwithstanding the proceeding [sic] fact, he did not advise DIMA or the RRT at any time during the processing of his PV application, or at any other time, that his claims for protection were bogus;
Mr Flores freely admitted that the sole purpose for applying for a PV was to extend his stay in Australia for as long as possible so he could legally work under the provisions of a Bridging Visa associated with his PV application.
12.I have taken into account the following considerations in assessing the present general conduct of Mr Roberto Flores:
Mr Flores is being sponsored by his partner Mr. Richard Sidney Mann.
13.I find that the applicant, by applying for a PV on bogus grounds and securing work rights under a Bridging Visa, was successful in his attempt to extend his stay and work in Australia. I find the applicant sought and gained entitlement under Australia's immigration laws he otherwise would not be entitled to.
14.I find that Mr Flores was not truthful in his dealings with the department with respect to his application for a PV. I have taken into account that significant resources were deployed to resolve Mr Flores' status in Australia. I find that Mr Flores' general conduct demonstrates a blatant disregard to Australian immigration laws.
15.Having regard to Mr Flores' past and present general conduct in Australia and based on the evidence before me I find that Mr Roberto Flores is not of good character in relation to his past and present general conduct and as such fails to satisfy me that he passes the character test.
(T: 9-10)

It should be noted that no reference was made in the Minister's delegate's decision to the first refugee application lodged by Mr Flores. It was only at the time of the initial hearing of this matter before the Tribunal in July 2000 that the respondent tendered the exhibits relating to the first protection visa application (see transcript 17 July 2000: 50-52).
Following the refusal of the interdependency visa Mr Mann lodged an application for a review of this decision by the Tribunal on 21 January 2000 (see T1).
LEGISLATIVE AND POLICY PROVISIONS
In order to be granted a subclass 310 (interdependency) visa the applicant must satisfy the relevant public interest criteria, including item 4001 in Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under s501 of the Act to refuse to grant a visa.
Section 501 of the Act 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.
…
(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 person's past and present criminal conduct;
(ii)       the person's past and present general conduct
          the person is not of good character;
Thus the issue which the Tribunal must determine is whether Mr Flores does not satisfy the character test for the purpose of s501(6)(c) of the Act. If the Tribunal is satisfied that Mr Flores does not satisfy this test then it may nevertheless exercise the discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Mr Flores.
Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction was given by the Minister under s499 of the Act on 16 June 1999 titled "Visa Refusal and Cancellation under Section 501 – No.17" (the Policy Direction: T5). The Preamble to the Policy Direction states, in part:
This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.
The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.
(T5)
Reference will be made later in this decision to those provisions of the Policy Direction which are relevant to the Tribunal's consideration of the present matter. But first the Tribunal turns its attention to the evidence presented concerning Mr Flores and the application of the character test under s501.
EVIDENCE
Past and Present General Conduct
As noted it was the general contention of the respondent that Mr Flores does not pass the character test pursuant to s501(6)(c)(ii) of the Act on the basis of his past and present general conduct. Paragraph 1.9 of the Policy Direction has the following to say about the way in which decision makers should apply the character test under this particular head.
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.
(T:33)
The Policy Direction also indicates that:
1.11 General 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 the 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).
(T: 34)

In both its Statement of Facts and Contentions, and in the presentation of its case at the hearing, the respondent indicated that it was principally paragraph 1.9(a), (b) and (c) of the Policy Direction which were most relevant to Mr Flores. While not disputing this, the applicant's case proceeded on the basis that there were countervailing factors which would justify a finding by the Tribunal that Mr Flores did meet the character test.
Protection Visa Application
The claims that were made by Mr Flores at the time of lodging his applications for refugee status have already been set out in detail. In his personal testimony to the Tribunal Mr Flores stated that he had come to Australia on a visitor's visa (see in general transcript 17 July 2000: 60-88; 18 July 2000: 92-123). He confirmed that he had commenced work shortly after his arrival in Australia even though he recognised that his visa did not allow him to be employed. He said that he had done nothing to regularise his status until 1992. He had not wished to tell anyone about his illegal status since he was afraid that they might turn him into the authorities and he wished to remain in Australia.
In 1992 he had become concerned that someone might inform on him to the authorities and he then approached a solicitor by the name of Gonzales who had been recommended to him by a flatmate (see transcript 17 July 2000: 77). He said that Mr Gonzales had made up the story for him to include in the refugee application. He had signed the visa application but that at the time he was "really confused and I didn't know what to do". He knew at the time that what he was signing was not true but he wished to continue working and he "just grabbed every opportunity then because I don't know what to do, but I'm just repentant for what I have done".
Following the refusal of the visa application Mr Flores said he did not go back to Mr Gonzales but then sought advice from another person, Mr John Lingham, a migration agent. He had assisted him in making the application to the RRT and accompanied him to the hearing. Mr Flores said that he had again told the Tribunal the same story that had been written in his protection visa application. He was aware that these claims were false and he had made them because he wanted to stay in Australia and work. It did not occur to him to inform the department at the time he was making false claims. After the refusal by the RRT he went to see Mr Lingham again and he said he could help him. He said that he did not at that stage consider himself to be a refugee (see transcript 17 July 2000: 80).
When questioned more closely by Ms Maurer about his second refugee application Mr Flores said that he did fear terrorism in the Philippines. He also said that he was fearful about returning to the Philippines with his passport stamped overseas and he thought he might be held at the airport by the Immigration Department and questioned. Knowing that corruption was a problem in the Phillipines it made him scared. Nonetheless he did accept that he was not a refugee and he had made a mistake in making this second application. He was not aware of the repercussions that would come from him making false statements. Re-examined by Mr Dobbie about this issue Mr Flores said that he did have a genuine fear of returning to the Philippines because of his status in Australia. He had that fear up until the time he departed Australia in 1999 (see transcript 18 July 2000: 93).
The Tribunal also asked Mr Flores a number of questions about his various applications and employment during the time that he was in Australia. Mr Flores confirmed that it had been his intention when he left the Philippines to seek a job in Australia in order to provide financial help for his mother. Once he had become employed by Gunz Phographics Pty Limited he had in fact remitted funds back to the Philippines.
The Tribunal also asked Mr Flores how he had actually come to meet Mr Gonzales. Mr Flores said that in fact someone had informed on him and immigration officials had come to the house where he was staying. Luckily he was not there and it was then that he went straight away to see Mr Gonzales (see transcript 18 July 2000: 100).
Mr Flores said that he had seen Mr Gonzales on two occasions at a house in Lane Cove Road. Mr Gonzales did not explain whether he was a lawyer or a migration agent. He had not asked him any questions because he wanted Mr Gonzales' help. He had paid him about $3,500 for his services but had not received a receipt for this payment. It was on the second occasion that he had visited Mr Gonzales that he had dictated to him what he should say in his application seeking refugee status (R4). The story had been simply copied word for word by him in his own handwriting. It was a complete fabrication (see transcript 18 July 2000: 102).
Mr Flores also said that after these encounters with Mr Gonzales he had not used his services again but when he lodged his appeal to the RRT he had used the services of another immigration agent, Mr John Lingham. Mr Lingham had been described in the following way:
He is a good immigration agent and – and he deals with most of the Filipinos because the wife is a Filipino so he understands the situation. Just go there and he can help you. So I went to see him and when we get there he says sort of thing, 'I think I can help you' and, just do this and that and you know – and I have to – the fee and everything – and I'll do the rest.
(see transcript 18 July 2000: 110)
Mr Flores said that he had told Mr Lingham that the original story had been concocted by Mr Gonzales. Mr Lingham, according to Mr Flores, told him just to leave the story as it was and he would do the rest. He had paid a sum of $2,000 for this advice and assistance. Mr Flores said that he had gone to the hearing at the RRT with Mr Lingham. He admitted that he had told the same story to the Tribunal (see transcript 18 July 2000: 112). He said that he was aware that the statements he had made were completely untrue and he was sorry for that (see transcript 18 July 2000: 113).
Mr Flores then went on to say that after the first refugee application had been refused Mr Lingham had assisted with the making of a second application. Mr Lingham had been aware that the first one had been based on false claims. Mr Flores admitted that he had again signed the various declarations contained in the second application. Mr Lingham had just said, as had Mr Gonzales, sign this and sign that and everything will be alright. He knew that it was stupid just to sign things like that and he really regretted it and would be careful the next time (see transcript 18 July 2000: 115). Mr Flores admitted that there were statements contained in the second application concerning the reasons why he had left the Philippines which were false (see transcript 18 July 2000: 116-117). However, he had been scared about returning to the Philippines and the fear remained of having to deal with the Filipino authorities.
Mr Flores said that the first occasion on which he had disclosed to the respondent's officials the fact that he had made false refugee claims was at the interview in Manila on 9 August 1999. He said that he had only admitted that the claims made in the first application were false. He had never admitted that the second application claims were false because he still had a fear. The following exchange then took place between the Tribunal and Mr Flores:
THE D. PRESIDENT: If I understand your evidence just a few moments ago, when I asked you about the claims that you had made in the second application, you said a number of them were false?
THE WITNESS: Yes a number of them were false. But what I am saying is that the fear in me come back.
(transcript 18 July 2000: 121)

Other General Conduct

It was not a matter of dispute between the parties that a genuine relationship existed between Mr Flores and Mr Mann. Mr Mann gave personal testimony to the Tribunal about the way in which he had met Mr Flores in 1993. He said that they had now been together for seven years and had lived together for two years prior to Mr Flores' returning to the Philippines. Mr Mann said that he had led a very reclusive life prior to meeting Mr Flores. Since that time his life had become much more social and he had met many of Mr Flores' Filipino friends. Mr Mann said that Mr Flores was a good person who always tried to help people. This included such things as referring people for home loans to another business acquaintance, Mr Peter Gambrill. He was a completely trustworthy person. They had a number of combined accounts, and Mr Flores was a part owner with him of a number of horses which they raced.
Mr Mann said that he had only found out about Mr Flores' immigration problems when Mr Flores' mother became very ill in the Philippines in early 1995. Mr Flores told Mr Mann that he might have to go back to the Philippines and then explained to him what his situation was at the time. Mr Mann said that his reaction was to tell Mr Flores that he should have explained his situation to him at an earlier stage but that he believed that he had not for two reasons. The first was that he did not wish to burden him with his personal problems, and the second that there was always a fear in the gay community that people would think that you were using them in situations such as this. He had not thought that Mr Flores was behaving in a deceitful way. He was a very private sort of person and at that time he had only known him for a couple of years (see in general transcript 18 July 2000: 126).
Mr Mann said that he had not known about the advice provided by Mr Gonzales at that point but somebody had suggested that Mr Flores should go and see Mr Lingham as an alternative so they had both gone to him. Shortly after that the first refusal of a refugee application arrived and then it had been suggested that a second application should be put in. He recalled that the grounds were that Mr Flores would be frightened of what would happen at the airport if he were to go back to the Philippines. He had no doubt that this was a genuine fear which had continued up until the actual time of his departure in 1999.
In the course of his examination in chief Mr Dobbie asked Mr Mann what exactly Mr Lingham had said in relation to the grounds for the second refugee application. The following exchange then took place:
What did Mr Lingham say in relation to the grounds for the application? Did he give any advice that you can remember?---No, no, I think all he did was add a few words to make it more substantial, the statement. Not change the direction of it but just make it sound more realistic I would have said. But, one thing he did say to us was that whatever we do we shouldn't get out of the refugee system, which obviously is wrong in retrospect and I have to – I am partly to blame. I mean, I didn't persuade King but I didn't stop him either from continuing with the Review Tribunal hearing. We were being guided but at the Review Tribunal hearing on the first application I went with him so there was – Lingham was there as well and the Tribunal went through the situation and asked King for his comments and he just sat there and they sort of had to prompt him as to what his story was and he sort of – he didn't deny that it was true – that it was a lie, sorry. He didn't claim that it was true though either, he just sort of said, 'Oh, yes, well' – he was – if you were an outside observer you'd say he was most unconvincing and he only said a few words about what the – what the fabricated story was about and then we left so – and that was knocked back pretty well straight away.
Was Mr Lingham aware that these claims were fabricated—Yes, I'm sure he was. Because they couldn't be true to start with – I mean they were things about things that didn't happen.
(transcript 18 July 2000: 127)
In addition to Mr Mann a number of other witnesses also testified on behalf of Mr Flores in regard to their personal knowledge of his general conduct and character at large. Ms Myrna Cruz, an occupational health and safety officer, said that she had known Mr Flores for about 12 years and that he was a close friend of her family. She believed Mr Flores to be a very diligent, hard working and thoughtful person who was honest and down to earth.
Ms Josefina Cabasa said that she had been a childhood friend of Mr Flores and he was a close friend of her family. She too believed Mr Flores to be "a kind, religious, honest and thoughtful person".
Mr Peter Gambrill said that he had known Mr Flores for a period of about eight years. They had many mutual friends. Mr Flores had been very generous in assisting him in referring clients to his business as a mortgage broker and had never asked for any commission for these services. He had always found Mr Flores "to be an honest, generous and reliable person".
Mr John Seymour, a company director, said he had known Mr Mann for a long period and had met Mr Flores more recently. He believed that he was in Australia Mr Flores was "a forthright, tax paying and hard working member of the community".
Ms Carol Anne Larkins, a departmental manager for Gruz Photographics Pty Limited, said that she had been the person who had originally interviewed and recommended Mr Flores be employed by the company. She regarded him as a very intelligent man who had a good command of English and performed his job very well. Ms Larkins said that she was not aware at the time of employing Mr Flores that he was an unlawful resident in the country. She said that if she had been aware of this fact she would not have employed him. She was also not aware of the details of the various protection visa and related applications that had been made by Mr Flores.
Mrs Audrey Olive Mann, Mr Mann's mother, also testified on behalf of Mr Flores. She said that he had become one of the family and he was extremely thoughtful and caring towards her. She considered Mr Flores to be a very genuine and trustworthy person.
In addition to this personal testimony provided on behalf of Mr Flores, Mr Dobbie also tendered an affidavit (A7) sworn by him in his role as the solicitor acting for Mr Mann which gave details of the submission lodged with the Minister in support of Mr Flores' s417 application as well as details of his income tax situation and copies of receipts for donations that he had made to a number of charitable organisations.
APPLICATION OF THE CHARACTER TEST
Submissions, Policy and Case Law
The meaning of the term "good character" as used in s501 of the Act is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court see Minister for Immigration and Ethnic Affairs v Baker 1997 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs 1996 68 FCR 422 (hereinafter Irving).
During the course of their submissions both of the parties made reference to Baker and Irving, and also to the more recent Full Federal Court decision in Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 127 at 7 (hereinafter Goldie). Mr Dobbie drew the attention of the Tribunal to the following description given of the term general conduct and good character in Baker:
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 s501(2), it expresses a contrast with the particularity inherent in the reference to 'criminal conduct'. We do not think that 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 the 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.
Mr Dobbie also referred to the statements made in Goldie about the concept of good character. In their joint judgment in this decision Spender, Drummond and Mansfield JJ said:
The concept of 'good character' in s501 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.
(at paragraph 8)
In her submissions made on behalf of the respondent, Ms Maurer referred to the Policy Direction and paragraph 1.9(a), (b) and (c) which have been set out earlier. Ms Maurer said that on the evidence before the Tribunal Mr Flores clearly failed to pass the character test. Mr Flores' intention had always been to remain in Australia as long as possible in order to gain employment. To further this ambition he had filed an application for refugee status and then, despite knowing that he was not eligible for refugee status, had applied for review of that matter by the RRT. It was the same intention that motivated him to apply for a protection visa, to seek review of the refusal of the decision by the RRT and, when that review also failed, to seek Ministerial intervention under s417 of the Act. Mr Flores through his conduct had showed a blatant disregard for Australian immigration laws. Further, there was no recent general conduct which would in any way alter a finding that he failed to pass the character test. The fact that he had returned to Manila in order to make the present visa application did not bring any credit on him since he had no alternative.
It was also the respondent's submission that little weight should be given to the personal testimony of the character witnesses. None of these witnesses were fully aware of Mr Flores' immigration problems. Mr Flores' disclosure of his immigration malpratice during the course of his interviews with officials of the respondent in Manila was also no more than an attempt on his part to place himself in the most favourable situation to obtain an interdependency visa rather than a genuine expression of contrition and remorse which flowed from his past misdeeds.
In his submissions made on behalf of the applicant, Mr Dobbie contended that having regard to the statement made in Goldie regarding the relevant standard to be applied there was nothing in Mr Flores' past and present general conduct which pointed to an enduring moral quality which was so deficient that it was for the public good to refuse him entry to Australia. Rather, in the present case Mr Flores' enduring moral qualities were high and not so deficient as to prevent him coming to this country for the public good.
Mr Dobbie submitted that while Mr Flores admitted overstaying his visitor's visa, making false claims on his first protection visa application, and to a limited extent on his second application, these were matters which were committed over five years ago and since that time Mr Flores had obeyed immigration laws. These breaches of law by Mr Flores were completely out of character. His most recent and present conduct showed that he was a person of good character since he had paid his taxes and had also made substantial charitable donations on a regular basis. He had also shown remorse for his actions, as evidenced by his voluntary departure from Australia and his open admission of his breaches to the respondent's officials. A number of Australian citizens who were also familiar with Mr Flores had all testified as to his positive attributes and that he was a person believed by them to be of good character.
The Tribunal's Views

With the judicial benchmarks of Irving, Baker and most recently Goldie clearly in mind the Tribunal is more than satisfied on the evidence before it that Mr Flores fails to meet the character test as a result of his past and present general conduct. There are in fact a number of instances of general conduct engaged in by Mr Flores that lay his "character bare very tellingly". Those instances commenced with his overstaying the visitor's visa in 1987 and obtaining employment while he was an unlawful resident. Mr Flores acknowledged openly that it had been his intention in coming to Australia to find employment and that he achieved this objective shortly after his arrival in this country.
Mr Flores also acknowledged that his intention in lodging his first application for refugee status was motivated by a desire to continue to reside and work in this country, rather than upon any belief that he was truly a refugee. He was prompted to take this action because he narrowly evaded apprehension by immigration officials who had been made aware of his unlawful residency. Mr Flores professed in his personal testimony to be uncertain and confused about what he was doing at that time and said he had relied upon the advice and assistance of Mr Gonzales. The Tribunal does not believe this account provided by Mr Flores of his motivation or knowledge of what he was engaged in. As a number of Mr Flores' own character witnesses stated, Mr Flores appears to be an intelligent and quite knowledgeable person with a good command of English. The Tribunal has no doubt that he fully comprehended the fraudulent nature of the application he was making and quite willingly completed in his own handwriting a statement of some substantial complexity regarding why he said he was fearful of returning to the Philippines.
Having lodged his false refugee application Mr Flores then proceeded to pursue it through the review process while being fully aware that it contained a completely fabricated story. Having abandoned the services of Mr Gonzales, Mr Flores took further advice from another consultant, Mr Lingham, who accompanied him to the hearing before the RRT. Having already lied to the Minister's delegate, Mr Flores then continued to lie in the testimony he provided to the RRT.
The RRT expressed doubt about Mr Flores' credibility as a witness, as did Mr Mann who witnessed him testifying before that Tribunal. Not surprisingly, the Tribunal rejected Mr Flores' claim to be a refugee. However, through what appears to have been a legal quirk in the transitional arrangements made between the ending of the old refugee's procedures and the introduction of the new protection visa procedures, Mr Flores was then able to lodge a second refugee application. This application was lodged with the assistance of Mr Lingham who would seem to have been very well aware of the fraudulent nature of the first application – a situation which did not seem to trouble either him or Mr Flores at all.
Mr Flores admitted in his personal testimony to the Tribunal that elements of the second application made by him for refugee status were also false. He claimed, however, to continue to have a genuine fear of being persecuted by Filipino authorities upon his return to that country because of the time that had elapsed since he departed his homeland. The nature of this particular claim was described by the RRT when it considered Mr Flores' second refugee application to be based on "fanciful speculation". Mr Dobbie in his submissions made on behalf of the applicant suggested that the RRT in using this term was only adopting the language of the refugee law and that it should not be taken to amount to a questioning of Mr Flores' credibility, nor the genuineness of his claim.
The Tribunal finds this particular contention to be somewhat incredulous when it is recalled that the second RRT review was made under circumstances in which Mr Flores did not appear in person to testify, and the Tribunal itself was completely unaware that he had already lodged an earlier and totally false refugee application. Had the Tribunal been aware of this earlier application it would almost certainly have used much stronger language about Mr Flores' fears of persecution and their fanciful qualities. This Tribunal has had the benefit of the information regarding the earlier refugee application as well as hearing Mr Flores give a personal account of his motivations and fears when making the second application. On the basis of this evidence the Tribunal is satisfied that his second refugee application was no more than a further cynical and deceitful attempt on his part to delay his departure from Australia and engage in employment.
Having failed with his second refugee application, his plea to the Minister, and his participation in a group proceeding, Mr Flores decided to leave Australia and to make, with Mr Mann's support, his present application for an interdependency visa. It was only at this stage that he did reveal to the respondent's officials the nature of his immigration malpractice. The Tribunal places little credence on this confession which would seem to be self-serving, and far too little too late to redeem a litany of fraudulent acts on his part. The Tribunal also places little weight on the views expressed by the various character witnesses who testified on Mr Flores behalf. Each of these witnesses, with the possible exception of Ms Cruz, had only scant knowledge of the nature of Mr Flores' immigration malpractice. This malpractice was systematic and sustained over a substantial period and it is indicative, in the Tribunal's strong opinion, of enduring moral qualities which show Mr Flores to be a person who is quite prepared to lie and deceive in order to further his own selfish ends. He is therefore not a person who meets the requirements of the character test.
EXERCISING THE DISCRETION
Policy
Having not been satisfied that Mr Flores passes the character test the Tribunal must now determine whether it should still exercise its discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Mr Flores. The Policy Direction refers to a number of factors to which decision makers should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations. The Policy Direction notes that:
Decision makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the important placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
(paragraph 2.2)
The three primary considerations to which the Tribunal must have regard are:
the protection of the Australia community, and members of the community;
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
(paragraph 2.3)
In the present case only the first part of these primary considerations require attention. In regard to the first, the protection of the Australian community, the Policy Direction notes the following:
2.4The 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).
(paragraphs 2.4-2.5)
Among the examples given by the Policy Direction of offences which are considered by the Government to be very serious are:
(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.
(paragraph 2.6(c))

Protection of the Australian Community

The nature of the conduct engaged in by Mr Flores has already been set out in considerable detail. It is clear that this conduct falls within that described in paragraph 2.6(c) of the Policy Direction even though it was acknowledged by the respondent that he had not been prosecuted nor convicted of any specific crime under the provisions of the Act. If convicted Mr Flores could be sentenced to imprisonment for up to ten years. In her submissions Ms Maurer referred to an number of decisions of the Tribunal in which the importance has been stressed of the observance of truth in dealing with officials in migration matters, especially where the truth is known only to the person making the statement: see Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780; Naidu v Department of Immigration and Ethnic Affairs (AAT 9753; 27 September 1994) and Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997).
In relation to the other matters referred to under the heading of the protection of the Australian community within the framework of the Policy Direction, it was not contended by the respondent that there was a likelihood that Mr Flores would repeat his conduct (Policy Direction: paragraph 2.10). It was contended, however, that the issue of general deterrence was very relevant in Mr Flores' case – a refusal of a visa would send a strong deterrent message to persons contemplating similar actions that they would not succeed in circumventing Australia's immigration laws.
Mr Dobbie contended on behalf of the review applicant that it was a matter of public interest that an Australian citizen such as Mr Mann be allowed to choose his life partner according to his own wishes, unless a clear threat to society was posed by this choice: ICCPR Article 23/24. Mr Flores posed no such threat. Further, the Tribunal should not given the same weight to Mr Flores' behaviour as it would to a recent arrival in this country. To an extent Australia forgave such people for their breaches through the introduction of visas which amounted to an amnesty for persons who had entered the country illegally. Mr Flores had missed out on these amnesties because his advisers had failed to draw them to his attention. Mr Dobbie also submitted that Mr Flores had left the country of his own accord – he could have prolonged his stay by joining another class action suit but instead chose to depart voluntarily.
Expectations of the Australian Community
In her submissions made on behalf of the respondent, Ms Maurer contended that the Australian community would expect that Mr Flores would not be rewarded for his conduct while in Australia. The Australian community would expect Mr Flores to be refused a visa to enter and remain in this country: see May v Minister for Immigration and Multicultural Affairs [2000] AATA 480; Santos v Minister for Immigration and Multicultural Affairs [2000] AATA 567; and Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575.
In his submissions, Mr Dobbie disputed that the only expectation of the Australian community would be to deny Mr Flores a visa. There was also an expectation said Mr Dobbie that where people sought to correct their ways they should be given a "fair go". Mr Flores had done the right thing and should be permitted to return: see Ngor v Minister for Immigration and Multicultural Affairs [2000] AATA 353.
Other Considerations
Paragraph 2.17 of the Policy Direction refers to a number of other matters which, although not primary considerations, may be relevant to the exercise of the discretion under the Act. The Policy Direction states, in part, that:
2.17 It is the Government's view that where relevant, it is appropriate these matters be taken into account but that 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.
(Policy Direction 2.17)

The respondent conceded that there would be emotional hardship caused to Mr Mann should his partner be refused a visa. However, Ms Maurer said that the Tribunal should take into account the fact that Mr Flores' immigration status was known to Mr Mann prior to the determination of the first refugee application. In fact, it could be seen from the oral evidence that Mr Mann encouraged and facilitated the immigration malpractice. Mr Mann was fully aware that there was a strong possibility that his partner would not be allowed back into Australia. Notwithstanding this, he committed to the relationship.
Mr Dobbie submitted that at the time Mr Mann and Mr Flores started their interdependent relationship Mr Mann was not aware of Mr Flores' immigration breaches. It could not be said, therefore, that Mr Mann entered into the relationship aware (or that he was expected to have been aware) of the consequences that would follow as a result of Mr Flores' breaches of immigration law. Furthermore, when he became aware, they sought advice from Mr John Lingham, but alleged that they were poorly advised, Mr Flores accepted responsibility for his actions and did not seek to deflect it onto his former agents. However, it was submitted that some weight should be given to Mr Flores' and Mr Mann's efforts to do the right thing by seeking legal advice in relation to Mr Flores' immigration status.
Mr Flores was now 48 years old, he had no family in the Philippines, and was similarly suffering because of his separation from Mr Mann. There was evidence that Mr Flores has asthma and problems with his sinuses. He was now having health problems because of the effect that the pollution in Manila, where he lives, is having on his asthma and sinuses. He remained housebound as a result. It was submitted that Mr Flores felt genuine remorse for his breaches of the law. He should now be a given a second chance and the discretion should be exercised in his favour.
CONCLUSION
As in all cases of this type the balancing process that the Tribunal must conduct in exercising its discretion under s501 of the Act is far from simple. The Tribunal feels considerable sympathy for Mr Mann, in particular, who has clearly committed himself in a dedicated fashion to maintaining his relationship with Mr Flores despite the problems that have been encountered in regard to resolving his partner's immigration status. It is a relationship which been maintained for a period of about seven years and one which has been acknowledged by all of the persons who are familiar with both Mr Flores and Mr Mann to be genuine and lasting in its nature. There is also evidence that the separation brought about by Mr Flores' departure from this country has resulted in considerable trauma for Mr Mann, and Mr Flores and has affected their health and well-being. That effect has also extended to Mr Mann's elderly mother who spoke in very positive terms about Mr Flores and her relationship with him.
Despite the nature of this evidence, and the clear hardship that would be endured by both Mr Mann and Mr Flores if the latter is not permitted to return to Australia, the Tribunal is satisfied that there is also evidence which shows that Mr Mann was well aware, at least in early 1995, that Mr Flores had been involved in what has already been described as serious and sustained immigration malpractice. Among other things, Mr Mann was present at the first RRT hearing when Mr Flores gave false testimony. Mr Mann was aware that this testimony was false but he nonetheless participated with Mr Flores in pursuing a further refugee claim with the advice and assistance of Mr Lingham. Mr Mann did not at any stage, prior to Mr Flores' departure from Australia and his interviews with officials in Manila, bring to the attention of the respondent's officials the nature of the problems confronting Mr Flores. Instead, he was at best a passive participant, and at worst a complicit participant in the ongoing series of applications made by Mr Flores to prolong his stay in Australia.
Mr Mann is clearly an intelligent and articulate man with professional qualifications and experience in the field of accounting. As such, he is also a person who must take responsibility for his own actions and, in the words used by McMahon DP in Dumbrell v Minister for Immigration and Multicultural Affairs [2000] AATA 443:
Having determined to embark on a permanent relationship with full knowledge of the possible consequences, he cannot now be heard to seek the exercise of discretion in his favour on hardship grounds.

Turning to the consideration of the protection of the Australian community and the expectations of that community, the Tribunal is of the opinion that this is a case where, as in a number of similar cases which have recently been before it, very significant weight should be attached to the issue of general deterrence. Mr Dobbie suggested that Mr Flores' breaches of the law should really be forgiven, or at least afforded little weight, because of past amnesties for persons like Mr Flores who had entered the country illegally and worked here. However, this contention seems to miss the significance and seriousness of the admitted fraudulent behaviour engaged in by Mr Flores which has been reviewed in depth. Rather than seeking to avail himself of any purported amnesty since coming to Australia in 1987 Mr Flores chose instead to engage in further fraudulent acts in order to evade possible immediate removal from the country. It is scarcely convincing to now assert that he in some way made a mistake and should be given the benefit of the doubt and forgiven for these breaches. To hold otherwise would be simply to reward his fraudulent conduct.
The Tribunal has no doubt that it would be a legitimate expectation on the part of the Australian community that Mr Flores should not now be rewarded for his conduct, just as it would be the expectation that the professional advisers who have been mentioned in this case who assisted him in the perpetration of his illegal behaviour should be prosecuted and punished. As the Tribunal said in the recent case of Oliver May v Minister for Immigration and Multicultural Affairs [2000] AATA 575 (hereinafter May):
This is especially the case when such advisers utilise the international humanitarian procedures established under the Convention and the Protocols relating to the Status of Refugees (the Refugee Convention). As a signatory to the Refugee Convention Australia has established a well recognised assessment process to determine the legitimacy of claims made for protection visas by persons reaching Australian shores. It is a matter of common knowledge that each year many thousands of dispossessed and traumatised persons do arrive in Australian seeking refugee status. It is both an affront to these displaced persons, as well as to the Australian community at large, that certain individuals (like Mr Flores and his advisers) should abuse this assessment process in such a flagrant and deliberate manner in order to obtain benefits, such as residency and the right to work, to which they would not otherwise be entitled.
(May, paragraph 83)
The nature of the immigration malpractice which has been uncovered in this case is both significant and sustained. In the circumstances the Australian community does have every reason to ensure that a very powerful deterrent message is sent to any non-citizens contemplating engaging in similar actions that if they are detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country. Thus in the present case the Tribunal is satisfied that there are not sufficient reasons why it should exercise the discretion in Mr Flores' favour and grant him the visa that he seeks. The decision under review is affirmed. In reaching this decision the Tribunal also wishes to repeat a concern that it has expressed in earlier decisions of this nature concerning the alleged participation of Australian citizens in encouraging and facilitating the immigration malpractice described. The Tribunal was told by Ms Maurer that her instructions were that one of the professional advisers, Mr Gonzales, who it was alleged assisted in the filing of the first fraudulent claim by Mr Flores, was still practicing as a migration agent and legal practitioner. However, as the result of certain allegations about Mr Gonzales in an earlier decision (May) certain inquiries were now being conducted into these allegations. In regard to the other person named, Mr Lingham, who was also alleged to have assisted Mr Flores, Ms Maurer said that he had lost his registration as a migration agent.
The allegations made against Mr Gonzales and Mr Lingham in this particular case are extremely serious. They too demand further investigation and appropriate action if proven to be maintained. Although regulatory mechanisms which should have prevented or investigated such alleged gross breaches of professional conduct and ethics appear to have been very slow to react, there would seem to be strong circumstantial evidence that quite widespread knowledge existed within certain communities about the availability of the services offered by advisers of this type. It is regrettable that these communities, instead of availing themselves of these services, did not provide the type of information required to investigate and prosecute such persons. By failing to do so it would seem to have been possible for widespread immigration fraud and malpractice to continue to flourish for much of the past decade.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  17, 18, 27 July 2000
Date of Decision  31 July 2000
Solicitor for the Applicant         Mr N. Dobbie
Solicitor for the Respondent    Ms J. Maurer