Mungcal-Fabian and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 362
•22 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 362
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1955
GENERAL DIVISION ) Re EVELYN MUNGCAL-FABIAN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date22 April 2003
PlaceSydney
Decision The decision under review is affirmed. …………………………………
Mr J Block
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – refusal on character grounds – where the visa applicant failed to meet the character test – false protection visa application – disregard for Australia’s immigration laws – desirability of consistency in Tribunal decision-making.
Migration Act 1958 – sections 5, 234, 235, 351, 417, 499, 501
Minister’s Direction No 21 (Visa Refusal and Cancellation under section 501)
Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967
Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443
Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956
Alwan and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 435
May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790
REASONS FOR DECISION
22 April 2003 Mr J Block, Deputy President PART A – INTRODUCTION AND GENERAL
1. The decision under review is the refusal by a delegate of the Minister for Immigration and Multicultural Affairs (as he then was), of an application for a Combined Class CUF Subclass 309 Spouse (Provisional) and Class BC Subclass 100 Spouse (Migrant) Visa applied for by Edward Fabian (“the Visa Applicant”). The Applicant, who is the Visa Applicant’s wife, sponsored that application.
2. Mr Douglas Marr of Counsel instructed by Mr L David Lock, solicitor, appeared for the Applicant while Mr Greg Peek of the Australian Government Solicitor appeared for the Respondent.
3. The Tribunal had before it the T-Documents tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
· Exhibit A1 is a bundle of cards sent by the Visa Applicant to the Applicant;
· Exhibit A2 is a statement by the Applicant dated 31 July 2002;
· Exhibit A3 is a letter dated 12 December 2001 by Jalandoni & Co Pty Limited to the Applicant concerning the remittance of monies by her to the Visa Applicant. (It was in fact unnecessary to tender Exhibit A3 since the same letter is included as item 18 in Exhibit A7);
· Exhibit A4 is a bundle of photographs;
· Exhibit A5 is a further bundle of photographs;
· Exhibit A6 is a document indicating that the Applicant has nominated the Visa Applicant as the beneficiary in respect of her superannuation;
· Exhibit A7 is a bundle of documents entitled “Applicant’s Bundle of Documents dated 6 August 2002”.. It includes Exhibit A3 and also includes three character references, one by a doctor in the Philippines and two by employers of the Visa Applicant in Australia; none of those references refer to the conduct on the part of the Visa Applicant which gave rise to the refusal of the visa applied for;
· Exhibit A8 is a bundle of documents entitled Applicant’s Second Bundle of Documents dated 6 September 2002; it includes three character references:
·A reference by Mr Antonio Dumayas which is Item 1 of Exhibit A8 stated in the final paragraph “[W]hatever he had done only because he met wrong people and having illegal adviced [sic]”.
·The reference (undated) by the Visa Applicant’s sister Jacquelyn Verdadoso which is Item 2 of Exhibit A8 stated in the second paragraph: “[M]y brother is a thoughtful, trustworthy and a very helpful person as he would help others before him. With this attitude towards life he surely can contribute to our society if given a chance to live in Australia. So I thought I would assist him to come by seeking a migration agent’s advice, which then suggested a Bridging Visa and asked my brother to make a story. Unfortunately he wasn’t granted to stay and I regret making that decision”.
·The reference (also undated) by the Visa Applicant’s parents Ernesto Fabian and Purita Fabian which is Item 3 of Exhibit A8 stated in the first paragraph “unfortunately due to circumstances he told a lie only to be with us, his parents”.
· Exhibit R1 is the Visa Applicant’s protection visa application;
· Exhibit R2 is the Protection Visa Decision Record;
· Exhibit R3 is the decision of the Refugee Review Tribunal (“the RRT”) in respect of the Visa Applicant;
· Exhibit R4 is the RRT decision in N1997/14200 (a decision referable to the Visa Applicant’s sister Rosalina).
4. The Respondent’s Statement of Facts and Contentions dated 16 September 2002 is included in part in order to set the scene. I include paragraphs 1-17 (inclusive under the heading “Facts”) and also paragraphs 18-29 (inclusive under the heading “Contentions”).
“FACTS
1. Mr Edward Fabian (the visa applicant) is a citizen of The Philippines. He arrived in Australia on 27 October 1996, with his sister, Rosalina Fabian, as the holder of a “Visitor Visa”, valid for a stay of three months after his date of arrival. (TD pages 121-127). The visa applicant had previously applied for a “skilled” visa to migrate to Australia on 24 July 1995, which was refused on 10 October 1996 (TD p151).
2.The visa applicant applied for a protection visa in Australia on 2 November 1996 on the basis of fabricated claims. He claimed to fear for his life at the hands of “some very influential, powerful and vindictive people” due to his involvement as “campaign manager and strategist” for his cousin, in a city council election. (Application, question 36) No documents were submitted in support of the claims made in the application. He was assisted in making the application by a migration agent, Clara Suasin.
3.The applicant was granted a bridging visa entitling him to remain in Australia and work until the final outcome of this application.
4.The protection visas application was refused by a delegate of the respondent on 14 February 1997 due to the absence of any suggestion in the claims made that the visa applicant feared harm for a Convention reason (Decision Record, paragraph 3.1.31)
5.The visa applicant sought review of this decision by the Refugee Review Tribunal (RRT) on 17 March 1997. He gave evidence to the RRT in support of his claims at a hearing on 11 September 1997. The RRT found, in its decision:
The Tribunal notes that the Applicant also gave evidence under oath at a Tribunal hearing in regard to his sister’s refugee application…His evidence in that case varied somewhat from the evidence he has submitted in this case, most clearly where he previously stated his sister did research and made reports that he is now claiming to have carried out. While it is plausible that he helped his cousin in election campaigns, it is apparent that he has exaggerated his role and, in any event, has never suffered any adverse consequences as a consequence of his participation, despite the fact he was in the country for three years after he claims he began receiving threats…
(RRT Decision, page 6; RRT Decision in N97/14200, pages 3-4).
6.The RRT affirmed the delegate’s decision that the visa applicant was not a Refugee on 18 September 1997.
7.The visa applicant , through Ms Suasin, requested the Minister to intervene under section 417 of the Migration Act 1958 (the Act) on 16 October 1997, on the basis of the same claims made in his protection visa application and pressed before the RRT. The Minister advised the visa applicant that he had declined to intervene on 9 March 1998.
8.The visa applicant claims to have met the review applicant in Sydney on 25 December 1997 and to have proposed to her on 26 January 1998. (TD, page 34). They married in Sydney on 3 March 1998. (TD, page 56).
9.The visa applicant departed Australia on 31 March 1998 and applied for a Spouse (subclass 309) Visa at the Australian Embassy at Manilla, the Philippines on 29 June 1998. (TD, pages 6-104)
10.The visa applicant answered “Yes” to the “Character” questions in the application:
“Q70: Have you…ever:
· been removed or deported from any country (including Australia)?
· left any country to avoid being removed or deported?
· been excluded from or asked to leave any country (including Australia)?”
and gave the following details:
“In 1989 I was detained in Villawood for overstaying in Australia, I was detained for about 4 four days until I could purchase a plane ticket to depart for the Philippines.
On March 31 1998 after being refused as refugee visa. I was asked to leave Australia. to avoid being removed or deported I left for the Philippines.” (TD, page 19).
11.At an interview on 6 August 1998, the interviewing officer’s notes record the visa applicant as saying, in relation to his protection visa application in Australia:
“* Knew he would be denied
*Applied for work rights
* He made up story-openly admitted…” (TD, Page 107).
It also records his answer to the question “Were there other dates or (special) occasions you attended as a couple?” as “-went for dinner on Valentines-proposal on Valentines.” (TD, page 108).
12.The visa applicant was advised that the respondent was considering refusing his spouse visa application on character grounds, (TD pages 154-155). He was interviewed again on 24 September 2001, which was taped by the interviewing officer.
He made a written response to the character concerns articulated by the respondent on 28 September 2001, in which he stated, inter alia:
“I confess that I have, violated the Australian law by providing misleading information on my previous application for a refugee visa. I claimed for a protection visa in Australia knowing that I was a “refugee” (sic) and for purpose other than a genuine need to seek Australia’s protection. I have even applied for a review with the refugee review tribunal again on the basis of false an misleading claims, knowing that I was not a “refugee”.. To make things worse, I further sought for ministerial intervention by writing to the Minister on the basis of the same claims and for the reasons other than a genuine need to seek Australia’s protection.
Having done all of the things mentioned above, I also understand that I have cause the Australian government a great deal of the time and efforts and also taking into account that Australian tax payers money was also used whilst processing my application for a refugee visa.
I admit that I did not have any valid reason as to why I acted in the manner stated above but only to be able to stay a longer time in Australia knowing that I had very little chance of staying permanent.” (TD, page 156).
13.On 4 November 2001, the Spouse Visa application was refused on the basis of the delegate’s assessment that the visa applicant failed to meet the public interest criterion 4001 as at the time of decision, as he was not satisfied the visa applicant met the character test in sub-paragraph 501(6)(c)(ii) of the Act. (TD, pages 160-165).
14.Having regard to General Direction 21 made under section 499 of the Act, the delegate declined to exercise his discretion to grant the visa. Considering the visa applicant’s relationship with the review applicant, the delegate found “I have assessed that there is some evidence to indicate the relationship may be genuine, however I am not entirely convinced that this is the case” but accepted for the purposes of considering the refusal “that refusal to grant the visa to the applicant will be distressing for both parties” (TD, page 164).
He noted that the review applicant was likely to have been aware that the visa applicant “may have difficulties seeking to migrate to Australia at a later date” and that she would be well placed to reside with the visa applicant in the Philippines if she so decided. (TD, page 165).
15.The review applicant sought review of the delegate’s decision by this Tribunal on 21 December 2001, having been granted an extension of time to do so.(TD, pages 3-5).
16.The review applicant travelled to the Philippines with the visa applicant on 31 March 1998 and returned to Australia on 27 April 1998. As at June 2001, she had subsequently travelled to the Philippines from 17 July 1999 to 1 August 1999, 24 December 2000 to 21 January 2001 and 8 April 2001 to 29 April 2001. Little evidence as to the ongoing nature of the relationship since the application was made in June 1998 has been provided.
17.Various “testimonials” have been provided to the Tribunal including from the visa applicant’s brother and father. None make reference to the breaches of immigration law on which the delegate’s decision was based.
CONTENTIONS
Character Test:, Sub-paragraph 501(6)(c)(ii) of the Migration Act 1958 (the Act):
18.The Tribunal should not be satisfied that the visa applicant passes the character test. [sub-section 501(1) of the Act]
19.The Tribunal should find that the visa applicant’s “past and present general conduct” since his application for a Visitor Visa in 1996 constitutes a blatant attempt to gain residence status in Australia through non-genuine means, comprising all, or the at least some, of the following conduct:
(a) Applying for a Visitor visa on the basis of a genuine intention to visit Australia on a short term basis when his true intention was to travel to Australia on that visa and apply for a Protection visa.
(b) Applying for a Protection Visa on 28 November 1996 on the basis of fabricated claims which the visa applicant knew could not sustain such an application, and using this application as a basis to obtain a bridging visa and working rights with sole intention of prolonging his stay in Australia.
(c) Seeking review of the refusal of this application by the RRT on the same fabricated grounds and giving evidence in support of those grounds to the RRT at a hearing on 11 September 1997. The visa applicant also gave false evidence to the RRT in support of his sister’s protection visa application, made on related grounds.
(d) Seeking ministerial intervention under section 417 of the Act on the basis of the same fabricated claims.
(e) Entering into a “marriage of convenience” with the review applicant and making the present application on the basis of it.
20.As the result of this conduct, the applicant may have committed offences under paragraph 234(1)(b) or and section 243 of the Act, which carry penalties of 12 months or more imprisonment.
21.Direction 21 made by the Minister under section 499 of the Act addresses the character test in relation to sub-paragraph 501(6)(c)(ii) at paragraph 1.9.
Paragraph 1.9 relevantly provides that decision-makers should consider
“(a) whether the non-citizen has been involved in activities indicating contempt, or disregard for the law…This could include, but need not be limited to:
· involvement in…breaches of immigration law.
(b) whether the non-citizen has, in connection with any application for the grant of a visa…provided a bogus document or made a false or misleading statement.”
22.In determining whether the applicant passes the character test, the Tribunal is required, by the Direction, to have regard to both good and bad conduct, including evidence of rehabilitation and recent good conduct. It provides “…where the decision-maker is not fully persuaded that a non-citizen has reformed, the discretion to refuse…a visa is enlivened, and evidence of good acts and recent good conduct becomes relevant to the exercise of the discretion.” (paragraph 1.11)
While the visa applicant appears to rely on recent good conduct and the absence of any existing criminal record in this regard, his persistent course of dishonest conduct in relation to his dealings with Australian immigration agencies involves extremely serious criminal conduct under Australian law.
Discretion not to refuse:
23.The power in section 501(1) of the Act to refuse a visa because a person does not pass the character test is discretionary. If the Tribunal is not satisfied that the applicant passes the character test, it must consider whether there are circumstances which justify the exercise of the discretion not to refuse the visa.
24.The Direction categorises the factors relevant to considering the exercise of the discretion as “Primary” and “Other” considerations, but instructs decision-makers:
must have due regard to the importance placed by government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. (paragraph 2.2)
(a) Protection of the Australian Community
25.Paragraph 2.5 of the Direction lists the factors considered relevant to assessing the level of risk to the Australian community in allowing a non-citizen entry to Australia as:
(a) the seriousness and nature of the conduct.
(b) The likelihood that the conduct may be repeated.
(c) general deterrence.
26.Paragraph 2.6 of the Direction gives as examples of serious offences, “serious offences against the Act, including but not limited offences attracting a sentence of imprisonment of 12 months or more for providing certain false or misleading information about a marital, de facto or interdependency relationship and presenting false or forged documents or making a false or misleading statement in connection with entry to Australia”.
As submitted above, the visa applicant has committed several offences under paragraph 234(1)(b) of the Act in relation to his initial visitor visa application and the various stages of his protection visa application.
If the Tribunal finds the marriage between the review and visa applicants was contrived for migration purposes, the visa applicant could also be considered to have committed a further serious offence under section 243 of the Act.
It is submitted, on any view, that the visa applicant’s conduct in relation to Australia’s immigration laws is in the “high range” of seriousness.
27.The likelihood of such offences being repeated, or the applicant engaging in similar dishonest conduct in his dealing with Australian Government agencies if permitted to reside in Australia is submitted to be high, as demonstrated by the visa applicant’s recurrent dishonest conduct in his dealings with the respondent. The respondent notes again in this context that the visa applicant was prepared to assist his sister to make a false refugee claim and gave false evidence to the RRT also on her behalf.
28. In relation to the issue of deterrence, the delegate comments:
“…the applicant has learned of protection visas and which agent to approach, through his contact with certain other members of the Filipino community in Australia, so refusal of his application will help to act as a deterrent to others whom he is associated with, some of whom have already applied for protection visas as well, including the applicant’s sister… (TD, page 164).
(b) Expectations of the Australian Community
29.The respondent suggests that it would be considered contrary to the expectations of the Australian community for the visa applicant to be granted permanent residence in light of his conduct. Such conduct could be colloquially referred to as “queue-jumping”, particularly having regard to the visa applicant’s earlier failed attempt to seek a “skilled” migration visa. It is regarded as abhorrent to the Australian community in the context of the large numbers of pending applications to migrate to this country and resulting in diversion of resources from the processing of legitimately made applications.
This is particularly so where Australia’s asylum seeker program has been abused.
4. As a matter of balance, I include the Applicant’s brief Statement of Facts and Contentions dated 18 June 2002 as follows:
“The applicant married Edward Fabian on 3 March 1998.
He applied for spouse migration on 29 June 1998 at the Australian Embassy in Manila, sponsored by the Applicant.
In a decision dated 4 November 2001 Fabian was refused the visas applied for on the basis that he did not pass the character test within the meaning of section 501 of the Migration Act 1958.
FACTS
Edward Fabian made application for a protection visa in November 1996 based on fabricated claims that was subsequently declined. There is no evidence to suggest that his marriage to the Applicant is other than genuine.
In fact there is an abundance of material that suggests the genuineness of the marriage. Fabian was assessed as not passing the character test solely on the basis of his fabricated claims in support of his application for a protection visa. The delegate found that he is not of good character in relation to his past and present general conduct.
Furthermore the delegate found that the level and duration of Fabian’s fraudulent behaviour was not outweighed by the existence of the relationship with the Applicant and accordingly declined to exercise his discretion and grant the visas notwithstanding.
CONTENTIONS
The Applicant contends that the delegate erred in finding that Fabian did not pass the character test. There was no basis for finding that the Applicant’s present general conduct was other than good. There are numerous character references to that effect. Fabian is employed in the Philippines and is a volunteer fire fighter.
He has openly admitted his past wrong doing both orally and in writing and has expressed contrition and remorse. He has apologised for his actions.
In relation to his past general conduct there is only the one matter, an isolated case, where he sought to escape the poverty of a third world country, unaware of all the possible consequences of his actions.
Furthermore the Applicant contends that the delegate erred in not exercising his discretion, if Fabian was not of good character, to grant the visas”.
5. Oral evidence was given by the Applicant and the Visa Applicant, and in the latter case by telephone link to the Philippines. In each case the services of an interpreter in the Tagalog language was available. The Applicant’s answers in English were invariably fluent but not always easy to follow; from time to time the aid of the interpreter was utilised. The Visa Applicant was educated in the main in the medium of English in Papua New Guinea; he speaks fluent English, however the services of the interpreter were retained in case of need and on a few occasions the Visa Applicant asked for a question to be translated into the Tagalog language and which he then answered in English.
6. There was no witness statement for the Visa Applicant but Mr Peek did not object to his giving evidence. Exhibit A2 which is the Applicant’s statement is short; it is set out in these reasons as follows:
“1. I was born in the Philippines on 18 March 1965.
2.I migrated to Australia in April 1994 having been sponsored by my then fiance. I married on 27 April 1994 and gained Permanent Residency on 20 December 1994. I was divorced from my first husband, Jose Tungol, on 13 October 1997 (decree absolute).
3.My place of birth in the Philippines is Arayat Pampanga, in Luzon. I grew up there with my parents and three brothers, completing High School and going on to Assumption University at San Fernando, Pampanga. I received a Diploma of Education upon completing my studies.
4.I was not suited, however, to teaching and was subsequently employed as a shop assistant in Angeles City, Pampanga.
5.I met my first husband, Jose Tungol, in San Fernando in 1989. He sponsored my migration to Australia as his fiance and we were married in Australia on 27 April 1994. The marriage did not work, he was very jealous and we fought a lot. The age difference between us, which had not seemed a problem initially, contributed to the difficulties.
6.I met my present husband Edward on Christmas Day 1997 at his family’s home at St Marys. He was singing and entertaining. He telephoned me later and we started going out together.. He would visit me at Dee Why where I lived and take me out. Sometimes he would take me to his parents house at St. Marys.
7.Edward asked me to marry him on 26 January 1998. I had fallen in love with him but I hesitated at first. On 14 February 1998 he gave me an engagement ring and I agreed to get married to him.
8.At the time I was aware that his refugee application had been refused and that he would be returning to the Philippines. I hoped and prayed that things would work out. We married on 3 March 1998.
9.On 31 March 1998 I accompanied my husband to the Philippines and stayed there with him until 27 April 1998. Since that time I have visited him in the Philippines on the following occasions:
17-31 July 1999
24 December 2000 - 20 January 2001
8 - 28 April 2001
29 June 2001 - 22 July 2001
10.I presently live with my husband’s parents at 20 Willowtree Avenue Glenwood. My sister-in-law and her family also reside there. My husband lives with my parents in the Philippines when he is not away looking for work in Manila.
11.I am presently employed as a process worker at ABW Engineering Pty Ltd at Gardeners Road Mascot and have been there since January 1999. I earn $372.00 net per week. From May 1995 to December 1998 I was employed at another electronics factory, Transcap Pty Ltd. From July 1994 to May 1995 I cleaned fish in a warehouse for Ocean Masta.
12.All my income, above my living expenses, is spent on telephone calls to my husband and family, trips to the Philippines to visit my husband and family, and money I send to my husband and family.
13.Despite my qualifications the only paid work I could obtain in the Philippines was a shop assistant. Wages are very low and the standard of living is very poor. My family is poor and my mother is ill. In 1998 my mother had a heart attack and she is regularly hospitalised. My family would be impoverished if I returned to the Philippines.
14.I am now 37 years old and I wish to have a child and a proper family life with Edward. Medical facilities are very poor in the Philippines and medical treatment expensive. It would not be responsible to have a child with Edward in the Philippines. I love Edward very much and want only for him to be with me but to return to the Philippines to be with him is to sacrifice everything, including my family. It would mean Edward and I and any children we had together would live a life of hardship and poverty.
15.My husband also communicates with me by sending cards and letters. Annexed to this statement and marked ‘A’ are copies of some of his correspondence.
16.My husband Edward is a good decent man. I know he has made serious mistakes in relation to his earlier refugee application. I am desperate, however, for him to be forgiven and allowed to join me to make a life together in this country.”
PART B – THE EVIDENCE OF THE APPLICANT
7. The Applicant was born in Arayat Pampanga in Luzon. She grew up there with her parents and her three brothers, all of whom are still resident in the Philippines. After completing high school she obtained a Bachelor of Education degree at Assumption University. (Clause 3 of exhibit A2 refers to a diploma rather than a Bachelor’s degree).
8. The Applicant twice failed to pass the examination which would qualify her as a fully fledged teacher. She found work for a short period as a substitute teacher and she also worked as a shop assistant. She said that she did not seek other work because her mother was and continues to be ill (having suffered heart attacks). She said however that work in the Philippines was hard to find.
9. The Applicant came to Australia in 1994 having been sponsored by Jose Tungol, her fiancee. They were married in 1994 but parted a short while later. The Applicant said that her husband was “very jealous”.. There was a significant age difference (16 years) between the Applicant and her first husband.
10. The Applicant and her first husband were divorced in October 1997. She met the Visa Applicant on Christmas day 1997 at the home of the Visa Applicant’s parents in St Marys, Sydney.
11. The Visa Applicant phoned her a few days later. A number of meetings were followed by a proposal of marriage on 26 January 1998. The Applicant’s evidence as to when she accepted the proposal was inconsistent. She said that when he proposed she had “second thoughts in the beginning” because her first marriage had failed. She said that she accepted the proposal when he gave her a ring on 14 February 1998. She also said that she accepted his proposal “sort of” on 26 January 1998 and that she was “just a bit nervous”.
12. The Applicant’s evidence as to how much she knew of the Visa Applicant’s residence situation in Australia was also inconsistent. It was moreover in conflict with the evidence of the Visa Applicant. She said that he told her at an early stage, and at all events prior to marriage, that he had applied for a protection visa but that that application had been refused. She said also that she did not know the details of the refused protection visa application. The Visa Applicant said that he told the Applicant everything prior to the marriage. The Applicant said moreover that she knew that the Visa Applicant would have to leave Australia but considered that their marriage would result in the grant of a spouse visa. (There was no evidence before me as to any advice sought in this regard).
13. Whether the parties got engaged on 14 February 1998 or on 26 January 1998, they were married by a marriage celebrant in Sydney on 3 March 1998. The Applicant’s evidence was that they did not have the money for a church wedding (both are Roman Catholics). She did not know how much the fee of the celebrant was. (The Visa Applicant said that it was $200. When asked whether a Priest would have charged more, the Visa Applicant said that he did not think so, but that they intended to have a proper church wedding on his return to Australia.) The Applicant’s evidence on this point was also that they would have a church wedding at a later date. The wedding was attended only by the Visa Applicant’s parents and his uncle and aunt, and after the ceremony the Applicant and the Visa Applicant went alone to a restaurant in Parramatta for a meal. Nothing was ever said in evidence by either the Applicant or the Visa Applicant as to the possibility that a church wedding might not be possible because of her divorce; this possibility was raised for the first time by Mr Marr in his closing submissions.
14. On the 31 March 1998 the Visa Applicant accompanied by the Applicant went to the Philippines. They stayed with her parents at their home in Pampanga.
15. The Applicant returned to Australia on 27 April 1998 and for some considerable time thereafter stayed with the Visa Applicant’s parents, Ernesto and Purita Fabian, at their St Marys home. She moved with them firstly to Glenwood and later to St Lukes. Although she did not pay rent the Applicant contributed from $40 to $50 per week in respect of the cost of food. In January 2003 she moved into accommodation, shared with a friend of her sister-in-law, in East Lakes, because it is closer to Mascot where she works. The Applicant pays rent of $190 per week.
16. After the Applicant’s return to Sydney in April 1988 the Visa Applicant remained with the Applicant’s parents for about a month and then went to stay with his own relatives in Manila. However from October or November 1998 until July 2002 he went back to Pampanga to stay with the Applicant’s parents, “in order to get to know them better”. The Applicant said that during that period he obtained casual work as a refrigeration technician. The Visa Applicant’s evidence was that during that period he worked casually as a family driver. In July 2002 (about 20 months later) the Visa Applicant moved back to Manilla where he is a taxi driver driving a three wheeler motor cycle which he hires from its owner.
17. The Applicant has visited the Philippines upon five occasions and generally for about a month on each occasion. On each of those occasions she stayed with the Visa Applicant at her parents’ home and their relationship was that of a husband and wife. The airfare cost varied from $700 in off-peak times to over $1,000 during the peak season.
18. The Applicant is a process worker in Mascot earning $372 per week net of tax. While living with the Visa Applicant’s parents she paid for food (and presumably also her travel costs to and from work) but not rent. Exhibit A3 indicates that during the period July 1998 to February 2001 the Applicant sent sums of money, aggregating about $4,500, to the Visa Applicant for the support of himself and also her parents, the Visa Applicant being in control of budgeting their respective needs. She said that since February 2001, she has continued to send amounts of money ($200 - $300 per month) to the Visa Applicant for this purpose. There was no precise evidence before the Tribunal as to how much exactly has been sent since February 2001 or when the relevant payments were made. The Applicant said that if this application failed she would have to go back to the Philippines to join her husband but that her family would suffer because she has to support them. There are a number of puzzling aspects as to the financial information provided, including the reasons why the payments were made to the Visa Applicant and not to the Applicant’s father. It was not clear how the Visa Applicant allocated monies between himself and the Applicant’s parents, in particular when he was in Manila, and living away from them. It remained unexplained why, during a lengthy period (of about 20 months), when the Visa Applicant lived with the Applicant’s parents, he did not support himself, when the Visa Applicant currently works in Manila as a taxi driver and did so before he came to Australia in the first place. Perhaps the most puzzling aspect of all is as to how, on earnings of $372 per week net of tax, the Applicant was able to live, pay for air tickets, and support her family, her husband and herself. It must be remembered also that the Applicant bore the cost of telephone calls to the Philippines of which, according to the Visa Applicant, there were many. The Applicant’s answer that she saved as hard as she could does not constitute an adequate explanation.
19. In cross-examination the Applicant admitted that she became separated from her first husband in February 1995, some three months after obtaining permanent residency in Australia. It was put to her that she married her first husband in order to obtain residence rights in Australia; she denied that allegation.
20. During cross-examination the Applicant gave confused and conflicting evidence as to when her engagement to the Visa Applicant took place. When asked whether she and the Visa Applicant were married on 3 March 1998 in order to put the Visa Applicant in a position to make an application for a spouse visa, her answer was that she did not believe in long engagements. She denied that they married in haste for any reason other than that they wanted to get married.
21. The Applicant was asked about the photographs (Exhibits A4 and A5) and why they were produced only after the Australian Embassy sought further information. Her answer as to when they were produced was not clear.
22. The Applicant admitted that a joint banking account in the names of both the Applicant and the Visa Applicant was opened on 13 March 1998, a matter of weeks before his return to the Philippines. She admitted also that it was opened in order to evidence the genuineness of the marriage. She said that the account is now dormant. When asked why it was opened at all, she said that she did not think that his return to Australia would be so long delayed. T6 is a telephone bill dated 19 June 1998 addressed to E and E Fabian. Many calls were made to 63274913 56 which is the telephone number in Manila of the Visa Applicant’s brother. She said that the account was hers. (The Visa Applicant’s father is of course also an E Fabian). It was then pointed out that some of the calls to that number were made at times when she was in the Philippines. Her reply was that those calls were made by the Visa Applicant’s parents. She agreed that there was only one line and said that the phone account was put into their names to prove that “we were married”. Prior to that time the account was in the name of her sister-in-law, Jacquelyn.
23. She said that her parents do not have a phone and that while the Visa Applicant lived with her parents they communicated by letter. She said also that since his return to Manilla she has phoned the Visa Applicant using phone cards.
24. The Applicant was cross-examined at some length as to what she knew about the Visa Applicant’s protection visa application at the time when they met. Her answers were at times vague, at times inconsistent and generally unconvincing. It is likely on the balance of probabilities that, as the Visa Applicant said, she knew that his protection visa application had failed, and moreover that she knew why. It was put to her that the Visa Applicant had admitted that his protection visa application was founded on fabricated claims; her answer was that he was sorry and remorseful.
PART C – THE EVIDENCE OF THE VISA APPLICANT
25. The Visa Applicant currently lives in Manila. He went to school (completing Grade 1 and part of Grade 2) in Manila. In 1979 he went with his parents to Papua New Guinea and finished high school at the age of 18 some nine years later. The medium of instruction was English and it is not then surprising that he is fluent in English.
26. After completing school the Visa Applicant went back to Manila. He took a one-year course in refrigeration and air-conditioning and obtained a certificate to that effect. He obtained employment as a technician in this field for “a couple of years” before becoming a taxi driver.
27. The Visa Applicant visited Australia in 1982 with his parents. In 1987 he visited Australia on his own on a tourist visa. He overstayed his visitor’s visa for a considerable period, was detained, and was then obliged to leave Australia. While in Australia at that time he worked illegally.
28. In October 1996 the Visa Applicant again visited Australia on a visitor’s visa; his sister Rosalina came to Australia at the same time. The Visa Applicant said that he came to Australia to visit his parents (his parents had settled in Australia in 1989).
29. Within one month of his arrival in Australia the Visa Applicant applied for a protection visa. He consistently described his application as one made for a bridging visa.
30. It is convenient at this point to set out the content of the Visa Applicant’s letter as at 28 September 2001 addressed to Mr G Heath. It appears at T22 and reads as follows:
“I understand that I have been given the opportunity to give more information in order to satisfy public interest criterion 4001, known as the Good Character Requirements.
I confess that I have, violated the Australian law by providing misleading information on my previous application for a refugee visa. I have claimed for a protection visa in Australia knowing that I was a “refugee” and for purposes other than a genuine need to seek Australia’s protection. I have even applied for a review with the refugee review tribunal again on the basis of false and misleading claims, knowing that I was not a “refugee”.. To make things worse, I further sought for ministerial intervention by writing to the Minister on the basis of the same claims and for reasons other than a genuine need to seek Australia’s protection.
Having done all of the things mentioned above, I also understand that I have cause the Australian government a great deal of the time and efforts also taking into account that Australian tax payers money was also used whilst processing my application for a refugee visa.
I admit that I did not have any valid reason as to why I had acted in the manner stated above but only to be able to stay a longer time in Australia knowing that I had very little chance of staying permanent. I know that the harm has been done, and it’s probably to late for apologies. But if it will mean anything to the Australian Government and it’s community, I know that my sincerity is at stake for that matter, I would like to extend my sincere apologies to the Australian Government and its community for having done such action. I beg for forgiveness.
If by any chance it would help my application for a spouse visa I would like to add that I have never had any substantial criminal record in Australia or any other country including the Philippines nor have I had an association with someone else or with a group or organisation whom the minister reasonably suspects has been involved in criminal conduct. I have no past and present criminal conduct.
I have no intention in engaging in any criminal conduct in Australia nor do I intend to harass, molest, intimidate or stalk another person in Australia. Neither will I vilify a segment of the Australian community or incite discord in the Australian Community or in a segment of that community. I have no intention of representing 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 the community or segment, or in any other way.
Once again I extend my sincere apology to the Australian Government and to its Community. By doing all the foolish actions I had done had only jeopardised my chances of starting a new life with my wife in Australia and above all the chance of proving my worthiness to the Australian community.
Still hoping and praying for another chance to regain the trust that I have ruined.”
31. In his evidence the Visa Applicant said that, having come to Australia to visit his parents and have a holiday with them, he wanted to stay longer. He said that after he arrived in Australia he heard rumours that he could extend his visa by applying for a bridging visa. He did so on the basis that his life was in danger in the Philippines. He was asked whether he was in danger and his answer was “not that seriously”. He said that he was involved in a political campaign and was often with the candidate although not employed by him, and that the views of the candidate would be attributed to him also. He said that he was never seriously threatened.
32. The Visa Applicant was asked about his evidence before the RRT. He said that it was 90 per cent false. The false part was that in respect of threats. He said that although he had the services of a migration agent Ms Suasin, he made up the false story himself.
33. The Visa Applicant insisted that he decided to seek extra time in Australia only after he arrived in Australia. However paragraph 7 under the heading “Part C Assessment” (of the decision maker’s decision) (T23 p161) reads as follows:
“7.At the tape-recorded interview, the applicant stated that at the time he had applied for the visitor visa to go to Australia, he had a prior intention of staying permanently in Australia if he could. After arrival in Australia, he went to see migration agent Clara Suasin. He did not pay her any fee as she was a friend of a relative. He admitted that he had written the protection claims in the application forms himself and that they were “90 per cent” false. He stated that he did not consider himself a refugee, but applied because he wanted to stay in Australia to work. He also stated that Ms Suasin had explained to him on preparing the original application that it was a “refugee” visa. The Applicant stated that his sister, Rosalina, also applied for a protection visa through Clara Suasin, and had based her application on fabricated claims …”
34. The Visa Applicant said on a number of occasions “all I ever wanted to do was spend more time with my parents”. He referred also to his desire to have a holiday with them. He had arrived in October 1996 on a visitor’s visa valid for three months. Having regard to his repeated references to an application for a bridging visa, it seems possible and perhaps even likely that he was seeking a visa which would enable him to work in Australia. As he put it in his evidence, his parents “have their own bills”.
35. The refugee visa application having been refused, the Visa Applicant appealed that decision to the RRT. When asked why he had done so, he said that he wanted to spend more time with his parents. He said also that he was seeking to buy time in order to purchase his ticket home.
36. The Visa Applicant was then questioned as to why after the RRT affirmed the refusal decision, he applied to the Respondent Minister under section 417 of the Migration Act 1958 (“the Act”). The Visa Applicant said that his motives were the same as those in respect of the appeal to the RRT.
37. The Visa Applicant admitted that he gave false evidence before the RRT as at his own hearing in September 1997 and also at his sister’s RRT hearing in July 1997.
38. The Visa Applicant was asked whether before he and the Applicant married they discussed making a spouse visa application and he said that they had. However he denied that they got married in a hurry for this reason. When asked the reason why the marriage took place so hastily, he answered “we just wanted to get married – with the love between us”, and “we found ourselves in love – we just wanted to get married”.
39. T18 is a letter by the Australian Embassy in Manila to the Visa Applicant asking him, inter alia, for further information and including photographs and other relevant information. The Visa Applicant said that he did not recall that letter.
40. The Visa Applicant insisted, as I have said, that he sought to extend his visit so to be able to spend more time with his parents.
41. The Visa Applicant was asked about his admission during his interview at the Australian Embassy in Manila that he came to Australia intending to stay in Australia if he could. He said that he had been confused.
42. The Visa Applicant’s evidence as to why he sought the bridging visa (in reality a refugee visa) and then appealed the refusal on two occasions was in my view untruthful. He had obtained a visitor’s visa valid for three months, sufficient time for a visit to his parents. Within one month of arrival the refugee visa was applied for and at a time which was long before the visit period of three months had expired. Mr Peek thought that the timing of the application for a protection visa arose from the fact that the law in its current form allows the grant of a bridging visa coupled with the right to work only when the protection visa is applied for within one month of arrival. However he did not make any submission in this regard because he was unsure as to whether that was the law in 1996, and I do not therefore make any finding other than that the application occurred suspiciously soon after arrival, especially when regard is had to the Australian Embassy interview referred to previously in these reasons.
43. The Visa Applicant cannot be believed when he said that he appealed the refusal to the RRT (where he gave false evidence) and later to the Respondent in order to be able to have more time with his parents. The reference by the parents to this effect that he lied for this purpose is similarly not credible. His statement that he was buying time in order to purchase an air ticket back was to the Philippines was even less credible. He had money for the marriage celebrant ($200) and a ring (the cost of which was apparently $400). Apart from any other considerations (and although this was not put to him at the hearing), it does not seem likely that an application in the Philippines for a visitor’s visa by an applicant who had previously breached his visitor’s visa conditions and been forced to leave the country would have received another visitor’s visa without proof of possession of a return ticket.
PART D – THE CHARACTER TEST
44. It is relevant to note that before applying for a visitor’s visa in order to come to Australia in October 1996, the Visa Applicant had previously applied for permanent residence on the basis of his skills. That application was refused.
45. The Visa Applicant had as I have said, overstayed his visitor’s visa in 1987 and in consequence of which he was detained and obliged to leave Australia. During that visit he worked illegally, and in breach of section 235 of the Migration Act 1958 (“the Act”).
46. T23 p161 indicates in my view that the Visa Applicant came to Australia with the intention of staying in Australia. Mr Marr contends that the words “if he could” indicated that the Visa Applicant intended to stay only if he was permitted to do so. That contention is rejected having regard to my findings below, in clauses 47 and 48 of this decision.
47. When all of the evidence is regarded as a whole the view that he intended to come to Australia permanently is inescapable. He had previously come to Australia as a visitor, worked illegally, overstayed, was detained and was then obliged to leave. He tried (unsuccessfully) to come to Australia as a permanent resident on the basis of his skills. He had, in other words, indicated a clear intention to obtain residence in Australia. The protection visa application was founded on grounds which were admitted to be false. Having breached section 234 of the Act in this regard, he then did so again by appealing to the RRT on the same false grounds and giving false evidence before it and then again appealing on the same false grounds to the Respondent under section 417 of the Act. In addition the Visa Applicant gave false evidence before the RRT at his sister’s hearing.
48. By these means the Visa Applicant managed to stay in Australia for about 18 months instead of the original three for which his visitor’s visa was valid.
49. On the evidence before me, the Visa Applicant committed a number of breaches of section 234 of the Act, the maximum penalty for which is such that I must treat those breaches as serious. Moreover, the Visa Applicant’s evidence before me as to why all of this occurred cannot be accepted as true. His conduct was not by any means that of a man who wishes to pay his parents, residing in another country, a visit. On the contrary his conduct was consistent only with an endeavour to come to Australia, to stay and work in Australia and to take such legal or illegal steps as were necessary for this purpose.
50. Mr Marr in his closing submissions thought that Jacquelyn’s reference and her statement as to the part played by Ms Suasin might indicate that some blame attaches to Ms Suasin. That submission is inconsistent with fact that the Visa Applicant said and repeated that he alone was responsible for the story.
51. In Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 (where the facts are in some respects similar to the facts in this case) there was an allegation that Ms Suasin provided the false story. That name has come up on other occasions before this Tribunal. However the reference attributing blame to her cannot stand in the light of the Visa Applicant’s statement that he alone was responsible.
52. Mr Marr contended that the fact that the Visa Applicant had confessed should be treated as evidence of recent good conduct. Mr Marr found it difficult to accept that breaches of this kind must be treated seriously, and in the same category as other criminal activities, in his view much more serious. He thought that this would be against “common sense”.. He went on to contend that it was the confession of the Visa Applicant which made the Respondent’s case and that had he remained silent (as was his right) the Respondent would have had nothing other than the findings of the RRT which are not adverse as to credibility. These contentions cannot be accepted for a number of reasons. Clauses 1.9 and 2.6 of Direction 21 make it clear that breaches of the migration system must be treated as serious. The Visa Applicant when summoned to the interview at the Australian Embassy could have refused to answer questions and could perhaps have remained silent but in such event the practical consequences to him would have been adverse; moreover it is naive to consider that the Australian Embassy in Manila does not make its own investigations. It is well aware, based on considerable knowledge and experience, of the fact that many claims of political persecution in the Philippines are unfounded. It is to be noted also that the RRT found that the Visa Applicant’s evidence was inconsistent with his evidence at his sister’s hearing. Mr Marr contended furthermore that there have been no charges or convictions. As was noted at the hearing, Mr Marr was in effect drawing on his criminal law experience; that there have been no charges or convictions is not to the point.
53. In any event the Visa Applicant’s confession was belated. Mr Marr contended that in criminal law proceedings a confession is always treated as favourable to the accused. These proceedings are not criminal proceedings. I refer in this context to Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443, where Deputy President McMahon said in clauses 25 – 33 inclusive:
“25. Ms Dalilis engaged in deception not once or twice but on a number of occasions. She knew that facts would be inserted in the protection visa application not because they were true, but because they were intended to be believed and to persuade the delegate to grant her the visa. If she did not see the final version of the facts at that stage, she certainly saw them when she was interviewed by the delegate. She did not seek to correct these facts except in a minor respect. She had another opportunity of telling the truth when the matter went to the Refugee Review Tribunal and again when the Minister's discretion was invoked. On none of these occasions did she seek to expiate her deception. It is not true to say, therefore, that the delegate merely selected an isolated incident.
26. The applicant then submitted that in fact his wife had made no verbal or written statement which could be defined as "incorrect or false". The incorrect information was provided by Mr Miranda who was described by Mr Dumbrell as the "catalyst for providing this incorrect information". As Mr Miranda was the author of the misleading information, he believed that his wife should not bear responsibility.
27. This is a quite unacceptable submission. Ms Dalilis knew that deception was intended. Even if she did not know the details of the story to be told at first, she certainly knew the details at a later stage and took no steps to correct them.
28. Mr Dumbrell then said that sufficient credit had not been given to his wife and sufficient attention had not been paid to her present general conduct. Her unexplained assertion in the current application form, that she had not been required to leave Australia is, in my view, evidence of a continuing pattern of attempted deceit. The fact that she made admissions at the two interviews in Manila does nothing to add credit to an assessment of her present general conduct. Mr Dumbrell submitted that "in her recent present dealings with the Department she has demonstrated transparency in being open and honest to which these qualities must be applied to someone who is of good character". In this he is mistaken.
29. Mr Dumbrell relied on some passages of the judgement in Baker to support a submission that "bad character should not be forever assumed on the basis of one incident". Of course, there was not one incident of deceit. There were many. Mr Dumbrell points to the fact that the false statement was made over four years ago on 19 April 1996. To this I would say that it may have been made for the first time on that date, but it has been repeated a number of times and has been supplemented in the present application by yet another false statement.
30. Mr Dumbrell, relying on a passage in the judgement in Irving v Minister for Immigration Local Government and Ethnic Affairs 139 ALR 84, pointed to the fact that supplementing the absence of criminal convictions, there were now character references which he tendered in evidence. Mr and Mrs Mamaril, the relatives in Brisbane with whom she stayed, gave short references in which they described Ms Dalilis variously as "trustworthy, well mannered, helpful, polite ... with a very pleasant nature ... has a positive attitude and hard working nature... an overall fun loving nature... kind and trustworthy... caring nature and sincere attitude". None of these descriptions are of any assistance in determining whether Ms Dalilis has met the character test, which is a statutory criterion designed specifically for the purpose of, and with reference to, migration. A Philippines businessman who was previously the manager of a bank attested that:
"I honestly believe that she is in good moral character, industrious, god fearing, sincere and honest in her dealings with people... She possessed a good public relations and more adept in sales/marketing activities."
31. None of the persons who gave these references has apparently been informed of the nature of the dealings between Ms Dalilis and the Department. Their references do not assist, therefore, in determining whether she meets the character test.
32. Mr Dumbrell also referred to the well-known phrase used by Lee J in Irving that one should look to the "enduring moral qualities of a person". Irving, of course, was decided before the extensive amendments were made to the Act by Act Number 114 of 1998. The section no longer speaks of "good character" as such, but of a statutorily defined "character test" which is to be looked at in its interaction with the operation of the Migration Act. Ms Dalilis overstayed her visitor visa by a considerable period, went to dishonest lengths to prolong her stay and yet still blames Mr Miranda for her predicament. Her failure to accept personal responsibility is itself a reflection on her enduring moral qualities. Mr Dumbrell pointed out that his wife had contributed $93 to World Vision Australia and that she should be given credit for this charitable act.. Compared with the other actions to which I have referred, such a donation would be insignificant as an element in considering Ms Dalilis' present general conduct.
33. Section 499 empowers the Minister to give a written direction concerning the performance of the functions of decision makers, including this Tribunal. In determining whether the character test has been passed, the Minister has directed that I should consider breaches of the immigration law and the making of an application for the grant of a visa of any kind based upon a bogus document, or the making of a false or misleading statement, as constituting a failure to pass the character test. On any view of the facts, therefore, Ms Dalilis must fail the subsection 501(6) test. She either knowingly provided, or was an accessory in the provision of, false information in her application for a protection visa. She knew when she lodged that application that she was wrongly applying for Australia's protection as a refugee. She did not take advantage of any of the occasions when she could have rectified the wrong statements and she did all this merely to extend her stay in Australia for as long as possible so that she could legally work under the provisions of a bridging visa associated with her application for a protection visa. This conduct demonstrates a blatant disregard for Australian immigration laws. It amounts to a failure to pass the character test.”
As I noted in Peljha (supra), it is doubtful whether a belated confession, made some time after the event at the Australian Embassy in Manilla, can be regarded as evidence of recent good conduct.
54. As evidence of recent good conduct I was referred to the fact that the Visa Applicant while staying with the Applicant’s parents in Pampanga and before returning to Manila, assisted in the fire department. The evidence was that he cleaned the fire engines and did odd chores, but was not involved in fighting fires. An activity of this nature is in his favour, although this particular activity goes back some considerable time, such that it is hardly recent. In any event it cannot on any basis be regarded as significant.
55. The Applicant in his statement of facts and contentions persisted with his contention that he did not fail the character test. That contention was maintained at the hearing. However it is clear to me that the Visa Applicant’s conduct has been such that he does not pass the character test. Mr Marr referred me to a decision of Deputy President Handley in Alwan and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 435 (7 June 2002) where the visa applicant signed a blank protection visa application which was then completed by one Abel Miranda, a migration agent. That decision is distinguishable on its facts.
56. The references submitted on behalf of the Visa Applicant are of limited value bearing in mind that they do not, except in the case of the references by his parents and sister, refer to the conduct on the part of the Visa Applicant which has given rise to this hearing. The reference by his parents cannot be accepted for the reasons set out previously; his sister’s reference might perhaps be construed so as to attribute blame to Ms Suasin, but the Visa Applicant was adamant that he alone was responsible for the fabricated story.
PART E – THE MARRIAGE
57. The Respondent has understandably enough in the circumstances expressed some reservations as to the genuineness of the marriage. There are some odd features. The parties met on Christmas day, were engaged within one or two months and married a very short time thereafter. The ceremony took place hastily and at a time when, the Visa Applicant admitted, he was “at the end of the road”.. The parties have, in the intervening period, spent very little time together as a married couple.
58. Nevertheless I believe that on the balance of probabilities the marriage is genuine. It is likely in my view that the Visa Applicant entered into the marriage in the first instance on a basis best described as opportunistic. On the other hand it must be said that the Visa Applicant has good reason to be grateful to the Applicant. It is she who has borne the financial burden; she has contributed towards his support, even though it is not clear to me why this was necessary. On her visits to the Philippines they have lived together as man and wife. While there were some attempts to evidence the genuineness of the marriage (and I refer in this context to the telephone bills and the joint bank account) they did live together as man and wife. And most relevantly she has lived with his parents for an extended period and similarly he has lived with her parents for an extended period, factors which are hardly indicative of a sham marriage. I think also that the fact that she has nominated him as the beneficiary of her superannuation is an aspect which tends to indicate that the marriage is a genuine one. It is perhaps she who is the more devoted of the two, but this is not something which is indicative of a sham.
PART F – MINISTER’S DIRECTION 21 DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 OF THE ACT
59. In this Part F references to numbered clauses should be construed as references to numbered clauses in Minister’s Direction 21 (“Direction 21”).
60. Clause 2.3 of Direction 21 provides that the 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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
61. Clause 2.3 should be considered in conjunction with clause 2.5 which provides:
“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).”
(There are no children whose interests need be considered in this matter).
62. I do not feel that the risk of recidivism is high. If granted a visa, the Visa Applicant would have achieved what he has sought so persistently for so long. That said, the systematic nature of the Visa Applicant’s conduct indicates a willingness on his part to break the law.
63. Having regard to clause 2.6(c) of the direction, I must regard the Visa Applicant’s conduct as serious. Clause 2.6(c) provides:
“2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:
…
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;”
I refer in this context to paragraph 8(e) of my decision in Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496 (6 June 2001) and where I said:
“8.(e)That the conduct was serious within clause 2.6(c) cannot be doubted having regard to the maximum penalties provided for breaches of section 234 of the Act. I was referred, in this context to a number of decisions of this Tribunal, Re Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 (paragraph 30), Re Lachmaiya and Minister for Immigration and Multicultural Affairs (1994) 19 AAR 148 (paragraph 35), Re Manlangit and Department of Immigration and Multicultural Affairs [2000] AATA 400 (paragraph 33), Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 (paragraphs 6-8), Re Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443 (paragraphs 25 - 28) and Re Tuiono and Minister for Immigration and Multicultural Affairs [2001] AATA 92 (paragraph 10).”
64. As to deterrence Mr Marr argued that the fact that the Visa Applicant has been separated from his wife for so long is of itself a sufficient deterrent. That contention is without foundation. It is necessary, as this Tribunal has said on many occasions, to send a strong message that conduct of this kind will not be rewarded by the grant of a visa. In May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 Deputy President Chappell said at paragraph 84:
“84.The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if 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 Ms Monis’ favour and grant her the visa that she seeks. The decision under review is affirmed. In reaching this decision the Tribunal also wishes to draw to the attention of the Minister its disquiet concerning the alleged participation of an Australian citizen in encouraging and facilitating the immigration malpractice uncovered in Ms Monis’ case. The allegations made against this citizen, and others engaged in similar acts, demand searching investigation.”
65.I refer also to the decision by Deputy President Chappell in Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790; paragraphs 44 and 45 of that decision read as follows:
“44. I turn now to the balancing process which must be carried out in regard to the exercise of the discretion. In all cases of this type, where a decision can have such a direct impact upon people's lives this balancing process is not an easy one. The Tribunal certainly has some sympathy for the situation in which the review applicant, Mr Gawronski, an Australian citizen, now finds himself. In regard, however, to the primary considerations relevant to this case - the protection of the Australian community and the expectations of that community - the Tribunal is firmly of the view that this is a case where very significant weight should be attached to the issue of general deterrence. Ms Gawronski's general conduct must be viewed in the context of the convincing and authoritative evidence provided in Ms Reay-Young's statement about the pervasive nature of the false claims made by Filipino citizens for protection visas in order to allow them to remain in Australia for economic and allied reasons. The Tribunal has already expressed the opinion that Ms Gawronski was not an innocent victim caught up in immigration malpractice but was rather a willing recipient of advice and assistance that allowed her to fulfil her ambitions of working for a number of years in Australia.
45. The Tribunal has no doubt that it would be a legitimate expectation on the part of the Australian community that Ms Gawronski should not now be rewarded for that conduct. This is especially the case when she and her advisers have utilised the international humanitarian procedures established under the Convention and the Protocols relating to the Status of Refugees (otherwise known as the Refugee Convention). As the Tribunal stated recently in the decision of May v Minister of Immigration and Multicultural Affairs [2000] AATA 480.
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 Australia seeking refugee status. It is both an affront to these displaced persons, as well as to the Australian community at large, that certain individuals -
In this case like Ms Gawronski and her uncle and friends:
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.
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.
(para 83-84)”
66. I refer also to the often quoted passage from the decision of Deputy President McMahon in Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; that statement at 155 – 156 reads as follows:
“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.
The expectations of the Australian community are clearly that non citizens will obey the Australian law.”
67. Hardship within clause 2.17 of Direction 21 is not as strong a consideration in this case as it is in other cases. Clause 2.17(c) provides:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
…
(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;”
In the first instance the Applicant knew that the Visa Applicant did not have residency status, that his protection visa application had failed, and that he would have to leave the country very soon thereafter. She said, as I have noted, that she does not wish to return to the Philippines because she would not be able to support her family while working in the Philippines. There was no concrete evidence before me as to why this should be so. She has three brothers in the Philippines; why can they not bear some of the burden? There was no evidence as to the financial status of her parents or as to their means and needs. The Applicant is an educated woman who speaks the Tagalog language and who is herself an immigrant to this country from the Philippines. I note in this context that all of her close family ties are to persons in the Philippines.
68. I have previously referred to my decision in Peljha (supra), where the facts are, as I have said, not dissimilar. In fact this case seems to me to be similar to many other cases that have come before this Tribunal. In Peljha (supra), referring to my own decision in Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956, I said in paragraph 9(a):
“9. (a) A part of paragraph 12(b) of my decision in Re Golding (supra) is also, as a matter of convenience, repeated in this decision as follows:
(b)Although each case of this nature turns on its own facts it is relevant in my view to have regard to decisions and in particular recent decisions of this Tribunal which involve similar fact situations. A search has revealed a large number of just such cases, and which indicate a common problem or theme. That pattern or theme includes most of the following factors:
(i)a female applicant from the Philippines who enters Australia on a visitor’s visa;
(ii)soon after arrival an application is made for a protection visa based on whole or in part on false grounds;
(iii)when that application fails there is an application to the RRT, followed, when that application is in turn unsuccessful, by a section 417 application to the Respondent;
(iv)there is often work in Australia in breach of visas and a lengthy stay in Australia (and towards the end of it a marriage in Australia), before a return to the Philippines;
I indicated at the hearing that I intended to refer to similar fact situation decisions, even if they were not cited at the hearing. Accordingly I refer by way of a few examples only to the decisions of Deputy President McMahon in re: Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443, re: Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, re: Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 and re: Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554; and of Deputy President Chappel in re: Gawronski (supra) and re: May and Minister for Immigration and Multicultural Affairs [2000] AATA 480. In all of these cases the Applicant was unsuccessful. As Brennan J said in re: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, consistency in decision making is desirable (at 636, 639 and 643). I note in any event that I agree with all of these decisions.”
69. It is clear to me that this is a case in which the discretion cannot be exercised in favour of the Visa Applicant.
70. Accordingly the decision under review must be affirmed.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block.
Signed: L Bonouvrie
AssociateDate/s of Hearing 13 and 14 March 2003
Date of Decision 22 April 2003
Counsel for the Applicant Mr D Marr
Solicitor for the Applicant Mr D Lock
Solicitor for the Respondent Mr G Peek
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