Matthews and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 255
•18 March 2003
CATCHWORDS – IMMIGRATION
– Spousal visa – character test – past and present conduct – false travel documents – whether false statement made was misleading in a material particular – harm to and expectation of the Australian community – best interest of the child – decision affirmed.
Migration Act 1958 ss. 20, 31, 65, 234, 499, 500 and 501
Migration Regulations 1994 Schedules 2, 3 and 4
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
DECISION AND REASONS FOR DECISION [2003] AATA 255
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2003/23
GENERAL ADMINISTRATIVE DIVISION )
Re ELEONOR MATTHEWS
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 18 March, 2003
Place: Adelaide
Decision:The Tribunal affirms the decision of a delegate of the respondent dated 25 November, 2002.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 21 January, 2003, the applicant, Mrs Eleonor Mercado Matthews, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) dated 25 November, 2002. Notice of the decision was handed to Mrs Matthews on 16 January, 2003. It was a decision to refuse her a Subclass 820 or a Subclass 801 Spouse visas to enter and remain in Australia. The delegate did so on the basis that Mrs Matthews did not satisfy the character test set out in s. 501 of the Migration Act 1958 (“the Act”).
At the hearing, Mrs Matthews was represented by Mr Patel, acting as counsel and the Minister was represented by his solicitor, Mr Kennedy. The documents lodged pursuant to s. 500(6C) of the Act (“G documents”) were admitted in evidence. Also admitted in support of Mrs Matthews’ case were statutory declarations by Mrs Florence Mercado, Mr Terrence Gerard Hogan and Clemene McDonald together with references by Ms Lyn Taples, Ms Margaret Young, Ms Jo Ella Fowler, Ms Phyll Reilley, Mr Troy Cunningham and R.P. Matich. Mrs Matthews gave evidence in support of her case as did her aunt, Mrs Florence Mercado. No witnesses gave evidence on behalf of the respondent.
THE ISSUES
There are two issues in this case. The first is whether Mrs Matthews passes the character test set out in s. 501(6) of the Act. In the context of this case, resolution of that issue requires a consideration of whether she is not of good character because of past and present general conduct. If she does not pass that test, the second primary issue is whether the discretion in s. 501(3) should be exercised to refuse to grant her the visa.
BACKGROUND
Having heard the evidence and read the documentary evidence, I have made findings of fact regarding matters forming the background to the issues that I must consider. I will set them out in the following paragraphs.
Mrs Matthews was born at Tanuan, Batangas Province in the Philippines on 6 November, 1975. She graduated from the Laguna Institute with a Bachelor of Secretarial Administration after three years of study. After completing a further year’s study in 1998, she graduated with a Secretarial Certificate. As part of the secretarial course, Mrs Matthews was required to complete six months practical work. She undertook that in the Office of the Prosecutor at Tanauan in 1998.
Mrs Matthew’s aunt, Mrs Mercado, lives in Adelaide where she works as a Cluster Manager for the Salvation Army. Mrs Mercado paid $AUD10,000 to a travel agent in Manila for Mrs Matthews to come to Australia. The travel agent gave Mrs Matthews a passport with a visitor’s visa, which had been granted on 14 April, 1999, and an airline ticket in the name of Josefina Oliveros Veza. Mrs Matthews used those documents to travel to Australia. She signed an Incoming Passenger Card in the name of Josefina Oliveros Veza. Mrs Matthews arrived in Adelaide on 27 April, 1999 with a visitor’s visa that was valid until 28 July, 1999. She lived with Mrs Mercado at her home and helped her to care for her adopted father.
In August, 1999, Mrs Mercado advertised Mrs Matthews’ personal details in the Messenger newspaper. Mr Jack Matthews answered the advertisement. On 29 August, 1999, Mrs Mercado introduced Mr and Mrs Matthews. They spent a lot of time together going to movies and dinners and drinking coffee together. Soon after, the relationship became serious and they became physically intimate. On 12 February, 2000, Mr Matthews bought Mrs Matthews an engagement ring and proposed to her on 16 February, 2000. They were married on 25 March, 2000.
On 4 May, 2000, Mr and Mrs Matthews visited Ms Barbara Dall’Acqua in the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). They did so in order to enquire about Mrs Matthews’ obtaining permanent residency. She took with her a passport in her own name and not in the name of Josefina Oliveros Veza as the latter had been stolen with her handbag. Mrs Dall’Acqua told her that she had two weeks to arrange for her return to the Philippines. In order to do that, Mrs Matthews was given a Bridging Visa expiring on 15 May, 2000.
Mrs Mercado took Mrs Matthews to Shepparton and, three weeks later, Mr Matthews brought her back to Adelaide. On 4 May, 2001, Mr and Mrs Matthews’ daughter, Abi Janelle Matthews, was born at the Flinders Medical Centre.
After officers of the Department left a calling card on 2 July, 2001, Mr Matthews telephoned the Department on the following day. He advised that they were dealing with an agent who was away but was advised that it was in Mrs Matthew’s best interests to present herself to the Department. If she were located in the community, he was advised, his wife would be subject to mandatory detention. On 3 July, 2001, Mrs Matthews was granted a Bridging Visa.
On 20 July, 2001, Mrs Matthews lodged an application for a Spouse visa. Her application was refused on 7 March, 2002 after a delegate had refused to waive criteria 3001 and 3004 of Schedule 3 of the Migration Regulations 1994 (“the Regulations”) on 18 February, 2002. After Mrs Matthews had sought review of that decision, the Migration Review Tribunal (“MRT”) remitted the matter to the Department for reconsideration with the direction that she was taken to have met criteria subclause 820.211(2) and 820.221(1) of Schedule 2 of the Regulations.
On 15 October, 2002, the Department gave Mrs Matthews notice that consideration was being given to refusing her visa on character grounds under s. 501 of the Act and this led to her application in this Tribunal.
THE EVIDENCE
The passport, visa and travel documents
In her statement dated 10 August, 2001, Mrs Matthews said:
“5. My aunty wanted me to come to Australia to help take care of her ailing ‘adopted’ father.
6.In December 1998, my aunty paid AUD$10,000.00 to a travel agency in Manila to arrange a visa for me to come to Australia to visit.
7.I provided my passport to the travel agent in February 1999.
8.On 25 April 1999, I met the travel agent to collect my passport and air-ticket.
9.It was then I noticed that the passport was in the name of Josephina Oliveros Veza.
10.I was surprised to find a different name on what was to be my passport but I felt it was too late to do anything about it as I had to leave for Manila airport shortly after that.
11.I was reluctant to come to Australia under this passport but was persuaded to do so by my aunty.” (G documents, page G20-62)
In giving evidence, Mrs Matthews said that her aunt had organised the paperwork for her to come to Australia. She had not telephoned her aunt and asked her to come to Australia; she had been to university and had a job, she said. She came because her aunt had helped her through university and it seemed a good idea to help her with her adopted father in return. They did not discuss what was involved if she were to come to Australia. She thought that she was coming to Australia for three months. Mrs Matthews said that she and her aunt had not discussed anything as all of the discussions had been through the travel agent. Her aunt had written her a letter proposing that she travel to Australia to care for her adopted father. That was all.
When first asked about her work in the Philippines, Mrs Matthews said that she submitted an application for leave to her prosecutor for a three month period. She told him that she needed to go on holiday and her aunt had organised the paperwork. She had been working as a legal secretary for three to six months at that stage. When asked how she was entitled to so much leave after such a short period of work, she replied that her work had been to satisfy the practical requirements for her degree. She agreed with Mr Kennedy that she had resigned from her employment. When he suggested to her that she had no intention of returning to her work, she said that, if she had to, she would go back; her prosecutor was really nice. Maybe she would find another job.
Mrs Matthews said that she intended to go back to the Philippines when she came to Australia but she met her husband. Her family was there. When Mr Kennedy asked her if she had a job arranged to return to, she replied that it was easy to find a job because she was qualified.
The travel agent, said Mrs Matthews, had told her that her aunt had paid $AUD10,000 to him to organise the paperwork. She said that she had told him that this was far too much. She did not discuss it with her aunt as she did not have a telephone number for her aunt. All communications with her aunt were through the travel agent.
Mrs Matthews said that she had gone to the office of the travel agent who had “taught her how to sign”. By this she meant that the travel agent had given her a piece of paper and told her to sign it. She thought that she had signed it in her own name. Mrs Matthews was shown the following passage from a letter written by her solicitor, Mr Wong, to the Department on 21 November, 2002:
“… my client gave her passport to the travel agent who was engaged by her auntie. The travel agent arranged everything for her and the day before she was due to depart for Australia, the travel agent gave her the passport and air ticket in the name of Josefina Veza. Up to that point in time she was unaware that she would be travelling under that name. She recalls signing a document in the name of Josefina Veza (but does not recall what the document was) and when she queried this with the travel agent, she was told that this was what she had to do until he (sic) auntie’s money (AUD$10,000.00) was received by the agent.” (G documents, page G37-111)
Mrs Matthews said that she recalled that, the second time she saw the travel agent, he told her to copy the signature. She did that and thought that it was “OK” as she had signed the first time. When it was suggested to her that this was “strange”, she responded that she had been asked to sign it. When it was further suggested to her that it was strange that she had been asked to sign in another name, she said that she just found out about it two days before she left the Philippines. She said that the first time that she was asked to sign in the name of Josefina Oliveros Veza, was two days before she left for Australia on 25 April, 1999. That was when she picked up the passport. When she was asked whether she had been asked by the travel agent to sign a document in a false name, Mrs Matthews said that she was not asked to sign anything in a false name. She was just given a document and told to sign it. The first time, she signed her real name and she only found out about Josefina two days before she came to Australia.
When she picked up a passport in another person’s name, she thought that something “fishy” was going on and said that she told the travel agent that she was reluctant to go to Australia on that basis. She wanted a passport in her own name but nothing was said by the travel agent. Mrs Matthews said that she had a friend, who worked in the Australian Embassy. She told her that she thought “something fishy” was going on in the Australian Embassy. Perhaps there was money passing under the table; she did not know. Even though she was suspicious, Mrs Matthews said that she had to come to Australia as her aunt would not get her money back. She discussed it with the travel agent. Mrs Matthews said that she asked the travel agent if she would refund the money if she did not travel but was told that it was a “done deal”. She “did not get any choice” and was “just a victim”. Had the agent refunded the money, she would have stayed in the Philippines but it was a lot of money to lose. That is why she went.
Mrs Matthews said that she signed the Incoming Passenger Card. It was the signature that she had copied previously. She also identified the application for a tourist visa (G documents, page G5-8 to G5-11). She could not remember if she had signed this document. The application is signed in the name of Josefina (G documents, page G5-10) and appears to be the same as the signature on the Incoming Passenger Card (G documents, page G3-5). In response to Mr Kennedy’s question as to how she managed to “do the signature exactly” the same, Mrs Matthews said she “just do it like that”. She did not practise it. “May be it is” a coincidence that the two signatures are the same, she said. Mrs Matthews then said that she had seen the signature in the passport and had copied the signature from there.
In her statement, Mrs Mercado said that she wanted her niece to come to Australia to help her to care for her adopted father. She told Mrs Matthews’ parents that she would pay for her air ticket, travel agent’s fees and all expenses in Australia. Her parents agreed to her proposal and gave her the telephone number of a travel agent. Mrs Mercado stated that she telephoned the travel agent and spoke to Ms Tessie Salvo, who was a member of staff. Tessie told her that the total cost would be $AUD10,000. The money was to be paid “upfront” and Mrs Mercado sent it together with an assurance of support.
Mrs Mercado continued in her statement:
“5. About the 25th April 1999, my niece informed me that the agent has procured Elonor’s visa and passport in the name of Josephina Oliveros Veza and not in her real name. She also informed me that she was to travel on the 27th April 1999 nd (sic) arriving in Adelaide on the 28th April 1999.
6.I advised Eleonor to come to Australia as planned as it was so close to her departure and that if she did not travel the ticket would be cancelled and I would lose money spent in arranging her travel and visa.” (Exhibit A)
In giving oral evidence, Mrs Mercado said that the cost of a one way airfare from the Philippines to Australia was approximately $AUD1,200. The sum of $AUD10,000 that she paid to the travel agent was intended to cover the airfare and all expenses. She did not approach any other travel agents because there was no competition in the Philippines. She did not know any other travel agents. When she helped her brother, she spent so much when she changed travel agents. Mrs Mercado denied that she had paid so much money because she knew that the travel agent would give her niece false documents.
In giving oral evidence, Mrs Mercado said that she wrote and sent an assurance of support to the travel agent, Tessie. She did not send any money but said that she would support her niece to whom she referred as Eleonor Abagon. Mrs Mercado said that she did not know that the travel agent was preparing the papers in the name of Josefina. On being shown a letter beginning “Dear Josie” and dated 9 March, 1999, Mrs Mercado identified it as being written in her handwriting. The letter invited Josie and her husband to visit for a family reunion. Mrs Mercado then said that she did not think that it was written in her handwriting before saying that she did not remember writing such a letter. The letter that she wrote to Mrs Matthews, she said, was written to Eleonor and was typewritten.
Her niece did not have her telephone number as all of her relatives telephone collect if she makes it known. The travel agent called her to tell her that her niece was not happy with the paperwork. She asked why that was so but was told that is “just the way it is”. Mrs Mercado said that she did not accept the explanation but it was the day before her niece’s departure and she did not want to lose the money she had already spent. It occurred to her that her niece might commit an offence by entering Australia with a false passport but there was no point in telling the officials in the Philippines; they would just laugh at her, she said.
Living with Aunt Florence
Mrs Mercado said that the travel agent told her the time that her niece would arrive at the Adelaide airport. Living with her niece was “all right”, she said, She was a great help with her adopted father and there were no problems. Mrs Mercado agreed that she had advised officers of the Department on 18 July 2000:
“… Mrs Mercado was very evasive, claims she did not know exactly when a/n arrived, what airport she arrived at, or where she is.
Told us she invited her to Australia and paid her fare, but she caused trouble from the moment she arrived. Claims she did not know what she did, where she went or who her friends are.” (T documents, page G2-4)
In cross-examination, Mrs Mercado said that they were getting on well but that she did not know where her niece was going. Families do not always get on and they “have their moments”.
Failure to renew visitor’s visa
Mrs Matthews said that she thought that she had a visitor’s visa for 12 months but that it had to be renewed every three months. She then said that she thought that it was good for twelve months as it was in the passport for that period. She then said that she had said to her aunt to renew the visa but she did not do that.
Mrs Mercado said that she told her niece that she had a twelve month visa and that she should use it up to compensate her for the money she had spent. Her niece was to help her to look after her adopted father. Mrs Mercado said that she was unaware that the visa had to be renewed every three months.
Advertising for a husband
Mrs Matthews said that her aunt had advertised for a husband in the Messenger and had discussed it with her beforehand. She said that she did not know why her aunt had done that but maybe it was to find her a husband. Mrs Matthews denied that she had formed the intention to advertise for a husband before she left the Philippines.
Mrs Mercado said in her statement that she started looking for a husband by advertising in the Messenger. In cross-examination, she said that she did that so that her niece could stay in Australia a little longer to help her with her adopted father. If her niece were to get a husband, she thought that she could go back to the Philippines and apply to come to Australia from there. She discussed it with her niece. She denied that she advertised so that her niece could get a visa to remain in Australia.
Attending at the Department after marriage
Mrs Matthews went to the Department on 4 May, 2000 after her marriage and took with her a passport in her own name. She said that she was surprised when she was given 15 days to leave but said that her surprise occurred because she expected to be put in detention. She had gone to the Department because she really loves her husband and does not want to lose him, she said.
Mrs Matthews said that she went to Shepparton after her visit to the Department because she really loves her husband. She said that she spoke to her husband and aunt and they told her to return to the Philippines. Mrs Matthews said that she rejected their suggestion because she did not want to be separated from her husband. Her aunt took her to Shepparton to think about things and she stayed for three weeks. She did not go to the Department after her husband brought her back to Adelaide as she was scared. When she approached the Department again on 14 August, 2001, her daughter had been born. She said that she did not think that she would be given a visa when she had her daughter; she needed to make another application. Mrs Matthews said that she had contacted a lawyer after she was pregnant and he had told her that he would organise the paperwork after she had the baby. The lawyer had told her that she had a greater chance of being given a visa if she were married to an Australian citizen and had a baby.
Mrs Mercado said that she told her niece to return to the Philippines. She agreed that she had taken her niece to Shepparton but it was her niece who stayed there for three weeks. Mrs Mercado denied that she had taken her niece to Shepparton in order to evade the Department. She had done so to enable her niece to sort out her affairs.
Future plans
Mrs Matthews said that it would be hard for her baby and husband if she had to return to the Philippines. Her husband did not want her to go. If she were to go, she would live with her family. It would not be so easy to get a job now as she is now 27 years old. It was easy four years ago when she was 23 years old to get a job. She and her husband had not talked about her taking their baby to the Philippines. Her husband did not want to go.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Regulations (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). The prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria and any secondary criteria set out in, the relevant Part of Schedule 2 to the Regulations. Schedule 3 sets out additional criteria applicable to unlawful non-citizens and certain bridging visa holders. Schedule 4 sets out the public interest criteria.
Section 65 of the Act provides that:
“(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”
Among the criteria that must be satisfied for a Subclass 820 visa is the requirement that Mrs Matthews must satisfy criteria 3001, 3003 and 3004 in Schedule 3 of the Regulations unless there are compelling reasons for not applying those criteria (subclauses 820.211(2)(d)(ii)). The Procedures Advice Manual 3 (“PAM3”) gives the following directions to officers in considering whether there are “compelling reasons”:
“3.3.14 In assessing whether there are compelling reason, officers are to take into account the circumstances which the Minister considers to be compelling. These circumstances, which were in the Explanatory Memorandum to Statutory Rules 1996 no. 75 which inserted this provision, are that
there are Australian- citizen children from the relationship; or
the applicant and their nominator are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least two years.)
In these circumstances, it is considered that the hardship which could result in applying the Schedule 3 criteria is sufficiently compelling to justify not applying the criteria.” (G documents, page G32-103)
Among the primary criteria that must be satisfied for a Subclass 820 visa is the requirement that, at the time the decision is made:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.” (criterion 4001)
Criterion 4001 is clearly drafted with the provisions of s. 501(1) of the Act in mind. That section provides that:
“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.”
The provision clearly has two aspects. The first is whether the person satisfies the Minister that he or she passes the character test. Should he or she fail to do so, the second aspect is whether the Minister decides to refuse to grant a visa to him or her on that basis.
The “character test” is set out in s. 501(6), which provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act.
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian people 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.
… When a visa applicant or a 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 Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community.”
The Direction – good character
The direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). In introducing the directions regarding that paragraph, the Minister states:
“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”
Sections 501(6)(c)(i) and 501(6)(c)(ii) are relevant in this case. In relation to s. 501(6)(c)(i), the Minister directed that:
“1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), the decision-makers should take into consideration the following:
(a)the nature, severity and frequency of the offence/s;
(b)how long ago the offence/s were committed;
(c)the non-citizen’s record since the offence/s were committed, including:
any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of continued or blatant disregard/contempt fort the law; and
(d)any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.”
In relation to s. 501(6)(c)(ii), the Minister directed that:
“1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
.continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non- citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence with which the applicant has been charged; or
(b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 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).”
I will return to the discretion later in these reasons.
The authorities – good character
In this case, part of the focus is upon Mrs Matthews’ past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon said that :
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)
After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:
“These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.” (pages 155-156)
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137. In Prasad, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which good character does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321. Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so (sic) it is unnecessary to pursue this question.” (paragraphs 8 and 24, pages 324 and 327)
Does Mrs Matthews satisfy the character test?
On the basis of her evidence, I am satisfied that Mrs Matthews certainly knew that she was presenting herself as a person other than herself when she presented the passport and travel documents in the name of Josefina Oliveros Veza. She did so when she signed the Incoming Passenger Card in the name of Josefina Oliveros Veza. I do not accept that she was, as she claimed, a victim of the travel agent. At best, she was ignorant that the travel agent had organised travel documents in a name other than her own two days before she travelled. At worst, she was party to the plan at a much earlier stage. Her evidence was confused as to when she had first been asked to sign in the name of Josefina Oliveros Veza. Whatever the true situation, she decided, on the best view, to adopt the plan or, on the worst view, to follow it through when she travelled to Australia on the basis of the travel documents in the name of Josefina Oliveros Veza. Although she claimed that her aunt would lose her money if she did not travel and so she effectively had no choice but to travel, I do not accept that she had no choice. She herself said that she thought that there was something “fishy” going on but did nothing constructive about it. She had a choice as to whether to proceed with her travel plans on the basis of a false statement or to refuse to travel. If she chose the latter option, it was not as if the travel agent was a person unknown to the family and against whom no action could be taken to recover the money. Mrs Mercado said that the travel agent was distantly related to the family.
Mr Patel submitted that Mrs Matthews did not present either a false or a bogus document when she presented her passport to enter Australia. It was a passport properly issued by the authorities in the Philippines. He also submitted that she had incorrectly represented that she was the person named in the passport but this did not mean that she had made a statement that was false or misleading in a material particular within the meaning of s. 234 of the Act. She did not have a criminal record in the Philippines and she would have received a visa had she applied in her own name.
I do not accept that Mrs Matthews has not made a false statement that is misleading in a material particular. In representing herself as Josefina Oliveros Veza, Mrs Matthews was representing herself to the Department’s officers at the point of entry to Australia as the person who had been given a visa to enter Australia. The person named Josefina Oliveros Veza had been given a visa on the basis of her application dated 29 March, 1999. That person had stated that she was a married woman, who wanted to travel to Australia for a family reunion and who would visit her aunt, Florence Mercado. It was supported by a letter appearing to be written by Aunt Flo who referred both to Josefina and her husband and to the family reunion. The date of birth shown on the application is not easy to read. It is clearly not Mrs Matthews’ date of birth in 1975 but appears to be 1962. Mrs Matthews was not married and, in the absence of any evidence on the issue, it must remain a matter of conjecture whether a visa would have been issued had the officer issuing it known that he was not issuing the visa to a married woman of more mature years but to an unmarried young woman of 23 years.
Once she entered Australia, I find that Mrs Matthews did not abide by the conditions of her entry in that she neither applied for an extension of her visa nor left the country at the end of three months. She said at first in giving evidence that she knew that she had to renew it at the end of three months and then resiled from that statement. At first she said that it lasted for 12 months and then placed responsibility on her aunt for not having extended it. In view of these answers, I am satisfied that she knew that she had a visa only for a three month period. Even if I am incorrect in that and she thought that it had a life of 12 months, I am satisfied that she did nothing about it at the end of 12 months. She simply ignored the issue of her visa once she was in Australia until after she had married Mr Matthews.
That brings me to Mrs Matthews’ aunt’s advertising her personal details in the Messenger newspaper in August, 1999. On the basis of her evidence, I am satisfied that Mrs Matthews was aware that her aunt was doing so. Her knowledge taken with her subsequent action in going out with Mr Matthews, I find that Mrs Matthews agreed to the advertisement in the hope of finding a husband in Australia. Whether or not she formed the intention to do so before she left the Philippines is irrelevant. I am satisfied, though, that she had formed the intention by the time that the advertisement was placed and so after her visa had expired. I am satisfied that it was not until after she had married Mr Matthews in March, 2000 that Mrs Matthews presented herself at the Department. She did so in May, 2000 and so almost a year after her visa had expired.
When I have regard to all of these events, I am satisfied that each has been part of an overall plan by Mrs Matthews to stay in Australia. The plan began with her decision to travel on the passport in the name of Josefina Oliveros Veza. It continued with her ignoring the limitations of her visa, looking for a partner, finding him and then marrying him. That is not to say that her love and affection for Mr Matthews are not genuine for I am satisfied that they are. That she loves him does not lessen the fact that her finding such a person was part of her plan.
On being told that she had to leave Australia within 14 or 15 days, Mrs Matthews again ignored the conditions of a visa that had been given to her. This time it was the conditions of the bridging visa that she was given in May, 2000 when she advised the Department of her situation. At that time, she was not pregnant. Despite knowing that she had ignored the Department’s requirement to leave Australia in 14 or 15 days, she did not do so. She was illegally in Australia from that time and it was only then that she became pregnant with her daughter, who was born on 4 May, 2001. I am satisfied that it was only after the birth of her daughter that she again approached the Department to regularise her remaining in Australia.
Having regard to the whole of her conduct, I am satisfied that her actions after her marriage in failing to leave Australia as required and in having a child, who is an Australian citizen, are all part of her plan to remain in Australia. Again, I would note that my finding is not intended to belittle the feeling that she has for her husband and daughter. I am satisfied that she has a great depth of feeling for them but that feeling is not inconsistent with her choosing to bear a child at a time that might enhance her prospects of remaining in Australia.
Each of Mrs Matthews’ personal referees speaks highly of her personal qualities. On the basis of those referees, I find that she is regarded by them as a warm hearted person who cares for others of whatever age, volunteers her time to the Salvation Army, assists her husband in his business and is good company. None of her referees indicates that he or she is aware of the manner in which she came to Australia and whether or not that knowledge would make any difference to his or her opinion.
Even accepting that Mrs Matthews is a person who is well regarded by those who know her in the Australian community, she has shown herself to be a person who disregards the interests of the wider Australian community and its laws. In the circumstances, the words that I said in Re Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 are equally applicable to Mrs Matthews:
“54. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia’s migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met. Fairness and equity are of such importance that it seems to me that I must conclude that the traits she has shown in seeking to avoid their application to her outweigh the good traits she shows …”
The good qualities that Mrs Matthews shows to those with whom she associates in the Australian community and her love for her husband and daughter do not outweigh her disregard for Australia’s laws and I find that she is not a person of good character. She does not pass the character test.
The Direction – the discretion
Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:
“… 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 importance 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)
64. The three primary considerations are:
“(a)the protection of the Australian community and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.” (paragraph 2.3)
The Minister then deals with each primary consideration in turn. He began his consideration of the first consideration with a general statement that:
“The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.” (paragraph 2.4)
The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mrs Matthew’s conduct; the likelihood that she will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of Mrs Matthew’s conduct, is the statement that I must have regard to:
“(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)
In assessing such matters, regard must also be had to any relevant factors put forward by Mrs Matthews as mitigating factors (paragraph 2.8(a)).
Regard must also be had to the likelihood that Mrs Matthew’s conduct may be repeated. The Direction states that a person’s previous general and criminal history are highly relevant to assessing the likelihood of committing an offence. Among other factors that are relevant is the extent of rehabilitation that has already been achieved and that can be expected in the future.
The third limb that is relevant in considering the protection of the Australian community. Paragraph 2.11 states that:
“General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.” (paragraph 2.11)
Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (paragraph 2.12)
In relation to the third primary consideration, the Minister stated that, in general terms, a child’s best interests are served if he or she remains with its parents. Countervailing considerations to which he refers are not relevant in this case. The matters to which the Minister has directed a decision-maker’s attention in considering the best interests of the child are:
“(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 separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)the age of the child;
(d)whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen’s prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.” (paragraph 2.16)
In looking at the best interests of the child, regard must also be had to the High Court’s judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353. (Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child (“the Convention”) in making administrative decisions under the Act. Articles of that Convention with particular relevance in this case state:
“Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. …
Article 9
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2.In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.…
4.…
Article 18
1.States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2.For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities …
3.…”
The majority in Teoh accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority continued:
“No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as ‘a primary consideration’. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.” (page 365)
The Direction then goes on to deal with other considerations that are to be given less weight than is given to the primary considerations. They include such matters as the extent of disruption to the non-citizen’s family, business and other ties in the Australian community, interdependent ties that he or she has with an Australian citizen or permanent resident and the degree of hardship that would be caused to immediate family members of the non-citizen if he or she were not permitted to remain in Australia. Also relevant is evidence of rehabilitation and any good conduct.
Should Mrs Matthews not be refused a visa on the basis of her not passing the character test?
Mrs Matthew’s actions in entering Australia were not consistent with the public good in so far as the administration of its immigration laws are concerned. She did not simply engage in one action or one set of actions directed to evading or avoiding Australia’s migration laws as might have been the case had she continued simply to maintain that she was Josefina Oliveros Veza. That action in itself was a breach of s. 234(1)(b) of the Act for to present herself to officers of the Department on entering Australia as another person was to make a statement that she knew was false or misleading in a material particular. As I have explained above in looking at the relevance of identity in granting a visa, her identity has to be regarded as a material particular. It is material to a decision as to whether or not she will be permitted to enter Australia.
Mrs Matthews not only embarked on the one action or set of actions but upon a series of actions built one upon another and all directed to that end. Again, as I have already alluded to, her representation as another person was the step that allowed her to enter Australia. It was built upon by her overstaying her visa, her search for a husband, her marriage and her failure to present herself to the Department. Her actions are to be viewed seriously as breaching Australia’s migration laws and putting her own interests above those of the rest of the community.
In view of her continuing disregard of Australia’s migration laws, it is too early to say whether she would be likely to disregard not only Australia’s migration laws but perhaps its laws generally if it is in her own interests to do so. Certainly, there is no evidence to show that she has disregarded any of Australia’s or the Philippines’ general laws or is likely to but, in my view, too little time has passed to show that she is a person who has changed her ways.
Whether or not refusal of a visa to Mrs Matthews will deter others from engaging in similar behaviour is always a difficult issue. If her visa is to be refused on character grounds, there is no indication in the evidence as to how widely known that fact would become either in Australia or in the Philippines but I am satisfied that it would become known. It will certainly be known to Mrs Mercado and it is reasonable to expect that it will become known to the travel agent who is a distant relative of Mrs Mercado. Refusal of the visa can be expected to alert the travel agent, who procured the travel documents for Mrs Matthews and who could be expected to attempt to do so for other people in the future, that the practice is likely to have very serious consequences for the individual concerned. Having observed both Mrs Matthews and Mrs Mercado, it is likely that they will make it known also.
As to the expectations of the Australian community, I have concluded that it would expect that Mrs Matthews not be permitted to come to Australia. It may be that its expectation would change at a later time as Mrs Matthews shows that she is prepared to abide by the law.
Although I did not hear evidence from Mr Matthews, he was present at the hearing with his daughter, Abi, to support his wife. I accept that Mr and Mrs Matthews have a loving relationship with each other and with Abi. Mr Matthews is an Australian citizen of long standing. If she is not permitted to reside permanently in Australia, Mrs Matthews said that her husband would not live in the Philippines. It is not clear where her daughter would live for I accept that Mr and Mrs Matthews have not discussed what they would do if she were not permitted to remain in Australia.
I do not think that there can be any question that it is better for Abi to grow up with both of her parents wherever they should be. If she is to be parted from her father, there is no evidence as to the health and schooling arrangements that would be available for her in the Philippines. There was no evidence as to how she would be supported but I am satisfied that her mother would live with her family. I am also satisfied that Mrs Matthews would have reasonable opportunities of finding employment. In doing so, I accept her initial evidence that she could find a job easily as she held secretarial qualifications. It was only later in giving her evidence that she raised her present age as a barrier to her finding employment. I prefer her earlier evidence. It follows that it would be reasonably likely that Mrs Matthews would have the means of supporting her daughter. It is also reasonable to presume that Mr Matthews, who has his own contracting business, is in a position to support his daughter whether or not she is living with him. Abi is young and still very adaptable. Other than with her parents, she has not yet formed social bonds that would be affected by her living in one country rather than another. As an Australian citizen, she is free to come and go from Australia and so could have access to both her mother and father should they choose to be parted.
Taking all of these matters into account, I have decided that the factors relating to the protection of the Australian community outweigh those relating to the interests of Mrs Matthews and of Abi. It follows that the balance in exercising the discretion under s. 501 against my finding that Mrs Matthew’s visa should be refused on the basis of her character.
What is the relationship between the requirements of s. 501 and other criteria?
Mr Patel referred to the MRT’s decision that there were compelling reasons to justify the waiver of criteria 3001, 3003 and 3004 as there was a child of the relationship between Mr and Mrs Matthews and because the relationship had continued for more than two years. He referred also to r. 1.20J(2). Regulation 120J(1) provides that the Minister must not approve the sponsorship of an applicant for a visa in certain circumstances. Despite that, r. 1.20J(2) provides he may do so if he is satisfied that there are compelling circumstances affecting the sponsor.
None of these provisions is relevant to the issue that I must consider. Section 501 sets out the parameters within which I must review the decision and the Direction made under s. 499 sets out matters that I must take into account in doing so. Criterion 4001 refers to the decision that has been made as a result of that consideration and is not a reference to any separate consideration of the character test. The fact that an Australian citizen child and a permanent relationship may be regarded as compelling reasons to waive certain criteria in Schedule 3 cannot affect the obligation to consider the requirements of s. 501 of the Act. Section 65 makes it clear that the consideration of whether criteria have been satisfied is separate from whether the grant of a visa is prevented by a provision of the Act, including s. 501, or of any other law of the Commonwealth. In doing so, it makes it clear that a consideration of whether it is prevented by reason of a sponsor’s not being under r. 120J(2) of the Regulations is also a separate consideration. While the requirements of s. 501 include a consideration of the best interests of any children, those interests are given the status of one of the three primary considerations but they are not, in the context of s. 501, given the status of a compelling consideration.
For the reasons I have given, I affirm the decision of a delegate of the respondent dated 25 November, 2002.
I certify that the eight-five preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: ..(sgd. P. Paczkowski).......……….......
P. Paczkowski Associate
Date/s of Hearing 5 March, 2003
Date of Decision 14 March, 2003
Counsel for the Applicant Mr G. Patel
Solicitor for the Applicant Mr Wong,
Gold Leaf Chambers
Solicitor for the Respondent Mr M. Kennedy,
Australian Government Solicitor
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