Pascual and Minister for Immigration and Multicultural Affairs - [2001] AATA 819

DECISION AND REASONS FOR DECISION [2001] AATA 819

DMINISTRATIVE APPEALS TRIBUNAL)

N° V2001/942

GENERAL ADMINISTRATIVE DIVISION)

JOSE TEODORO PASCUAL

Applicant

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:             25 September 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and the matter is remitted to the Minister on the basis that the general discretion contained in s.501(1) of the Migration Act 1958 ought be exercised favourably to the applicant in considering the grant of a class AX subclass 103 parent visa.

(sgd) G.L. McDonald
Deputy President
IMMIGRATION — visa refusal - character of applicant - overstayed visitor visa in excess of 17 years - balance between immigration malpractice and interests of an Australian child
Migration Act 1958 s.501
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

REASONS FOR DECISION

25 September 2001 Deputy President G.L. McDonald

This is an application to review a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("Minister") refusing the applicant the grant of a visa (class AX subclass 103 parent visa) on the basis that he is a person not of good character under the provisions of s.501 of the Migration Act 1958 ("the Act"). It is claimed that the applicant does not pass the character test provided for in s.501(6)(c), that is, as the result of his past and present general character. Clause 19 of the respondent's statement of facts and contentions claims the following:
. . .
19.The respondent contends that Mr Pascual does not pass the character test based on the following past and present general conduct:
(a)Mr and Mrs Pascual applied for visitor visas in 1984 and 1986 respectively though they did not intend a genuine visit, and provided false and misleading information in their applications.
(b)Mr and Mrs Pascual overstayed their visitor visas by a period of more than 10 years (in Mr Pascual's case, 17 years).
(c)Mr and Mrs Pascual have worked illegally in Australia, Mr Pascual using a false identity to work illegally (see G6).
(d)Mr and Mrs Pascual have lodged protection visa applications with the department, made on the basis of misleading claims and for the purposes of prolonging their stay in Australia rather than because of a need to seek Australia's protection as refugees (S1, S2).

The substance of what is alleged is not challenged by the applicant before this Tribunal.

I am satisfied from the evidence before me that the applicant and his wife are citizens of the Philippines. They have two children: Yshrael who was born on 15 December 1978 and who became, on 26 January 2000, an Australian citizen and Sandra who was born on 26 May 1988 in Australia, and is now an Australian citizen.
The applicant came to Australia on 21 June 1984. He entered Australia on a 3-month visitor visa and has stayed here ever since — a period now exceeding 17 years. His wife and son (the latter then aged 6 or 7) joined him in 1986 — his wife also entering Australia on a 3-month visitor visa. They too have remained in Australia ever since.
The applicant has had various employment in Australia. He and his wife currently operate (with the assistance from time to time of their son) their own carpet cleaning business. Their evidence satisfies me that the applicant lodges income tax returns and pays taxation in Australia. I am also satisfied that the applicant has had no criminal convictions since his arrival in Australia and there is nothing before me that suggests he has been engaged in any criminal or other anti-social behaviour.
The applicant and his wife are purchasing a house in a suburb of Melbourne in which they and their two children live. Yshrael has finished school and aspires to a singing career. Sandra is attending Williamstown High School and is shown in the school reports, attached to the applicant's statement, as doing well at school.
To the outside observer the family is united, church going, quiet living, tax paying and law abiding citizens.
The applicant and his wife, however, knowingly deceived the Australian Department of Immigration throughout their lengthy stay in Australia. Both were aware that they had overstayed the three-month entry period granted by their visitor visas and contrary, in any event, to the terms of the visas both have engaged in paid employment while in Australia.
In considering whether the applicant is not of good character I must look to ascertain his ". . . enduring moral qualities" as stated by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. Those qualities must be distinguished from what others may say of the applicant.
I accept the applicant as:

a man committed to providing the best circumstances in which to raise his children and to give them the best chances in life;
a hard working employee and apparently successful small business operator; and
being perceived as a quiet and law-abiding Australian citizen.

The reality is however different. All of the good qualities demonstrated by the applicant are undermined by the fact that he has built his life in Australia in breach of Australian immigration laws. While there has been much written and stated in the last two years or so about so-called "illegal immigrants" to Australia (refugee asylum seekers), the Tribunals and the Courts have always treated immigration malpractice as being serious (see Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148).
The Government, in the binding Ministerial Direction Nº 21, issued by the Minister on 23 August 2001 also regards immigration breaches as being serious (whether they be offences (as to which see clause 2.6(c)) or a course of conduct (see clause 1.9(b))).
As best I can weighing the factors in favour of the applicant against the seriousness with which the Minister requires the Tribunal to regard immigration malpractice, I cannot be satisfied other than that the applicant is a person who does not meet the character test provided for in s.501(1) of the Act.
That however does not end the matter. Section 501 provides for the exercise of a general discretion in circumstances where a person may otherwise have failed the character test. In exercising that discretion I am also bound by Part 2 of the Minister's earlier-mentioned Direction. Clause 2.3 nominates three primary considerations, viz:

the protection of the Australian community and members of the community,
the expectations of the Australian community, and
in all cases involving "a parental . . . relationship between a child . . . and the person under consideration, the best interests of the child . . .".

I shall deal with each of these primary considerations seriatim:
The protection of the Australian community
Of the three matters nominated in clause 2.5 of the statement:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism);
(c)whether visa refusal or cancellation may prevent or discourage similar conduct . . .

It is subclauses (a) and (c) which require addressing in the circumstances of this case. Clause 2.6(c) nominates serious crimes against the Act as including ". . . making a false or misleading statement in connection with entry or stay in Australia". In this case the applicant undertook as a condition of the grant of a visitor visa not to work in Australia and to leave Australia at the expiration of a 3-month period. Clearly in light of the fact that he has worked and continued to reside in Australia for over a period of 17 years, those statements are either or both false or misleading. While the applicant expresses remorse for his actions and has in the past taken rather desultory attempts by consulting solicitors to inquire as to how he may legitimise his stay in Australia, the conduct remains serious. It clearly precludes the Australian community from making a choice of those to whom it wishes to grant permanent residency, deprives citizens from the opportunity of obtaining employment when such employment is being carried out by a non-citizen and is unfair to others who are prepared to wait in order to seek legitimate entry into Australia.

I agree with Mr P. Rose, counsel for the applicant, that there is no issue as to the likelihood of the conduct being repeated on the basis that the applicant's application for a visa will be either accepted or not, and, if not, he will leave Australia and so the problem will not again arise.
The final issue under this topic to consider is whether the refusal to issue a visa to the applicant may prevent or discourage similar conduct by others. After careful consideration, I am satisfied that the general deterrence is a strong factor in favour of refusal in cases such as the present. Indeed, the apparently relatively easy manner in which the applicant has avoided detection over a long period of time demonstrates the difficulty in tracing those who overstay the time permitted by their visitor visas and exposes the vulnerability of the Australian community to like-minded people. Accordingly, I am satisfied that general deterrence is a highly relevant factor for consideration.
The expectations of the Australian community
As to the second major consideration, that is the expectations of the Australian community, it is clear that the applicant has breached the trust which Australia expects of visitors, to abide by the terms of their visas. This also is a weighty consideration in favour of refusal of a visa for the applicant.
The best interests of the child
The final primary consideration relates to the best interests of the child. It is sensibly conceded by Ms F. McKenzie, for the respondent, that educational and employment opportunities are greater in Australia than is the case in the Philippines and that it is in Sandra's best interest to remain living with both parents. The latter approach is, in general terms, endorsed in clause 2.15 of the Minister's Direction. The same clause requires a number of other issues to be considered, including the age of the child and whether the child is an Australian citizen, the length of time the child has spent in Australia, the circumstances of the probably receiving country, including the educational facilities, the standards of health, the support system of the country to which the child may have to go, any language and/or cultural barriers which may arise.
I am satisfied that Sandra enjoys a close relationship with both her mother and father, as well as with her older brother. Sandra has only lived in Australia and is now an Australian citizen. At the age of 13 years she has just entered her higher schooling. I am satisfied that a permanent move to the Philippines would be unduly disruptive and accordingly detrimental to her future educational and employment needs and aspirations. If her elder brother opted to remain in Australia Sandra would be deprived of the company of her elder brother.
It was the applicant's evidence that English was the spoken language at home, although Sandra did have a limited oral understanding of the Tagalog dialect. She was even more limited in its written form. Tagalog is the language taught in Filipino Government schools. It was the applicant's evidence, while there are schools in which English is the language used, such schools are expensive and that he doubted he would be able to obtain sufficiently well-paid employment in the Philippines to allow Sandra to attend a high school at which English was the language used.
There would clearly be cultural differences to which Sandra would need to adapt if she was returned to the Philippines. While she would have the support of her parents and, no doubt also access to support from an extended family while undertaking the adaptation, commonsense indicates such a move at a critical transitional stage of her education and life would be more likely to be disadvantageous than advantageous to her.
I am also satisfied that it is a matter of great weight that Sandra would be adversely affected if she was to be separated from her parents, that is by her staying in Australia to complete her education if her parents were returned to the Philippines. It is unrealistic to expect her 22-year-old brother, should he opt to remain in Australia if his parents returned to the Philippines, to provide the type of support for Sandra which she would ordinarily expect from her parents. Further I accept the applicant's evidence that employment opportunities are less favourable to him in the Philippines than is the case in Australia. Realistically he may not be able to provide the financial support necessary for Sandra to remain in Australia to complete her education.
The Ministerial Direction also requires, in clause 2.17, other less important considerations to be taken into account. Amongst these is the acknowledged good conduct of the applicant (aside from the immigration malpractice), the fact that his elder child, although now an adult, is still financially and emotionally dependent on his parents and the fact that Yshrael would or may be (that is if he does not return to the Philippines) be separated from his sister as well as from his parents. Under this heading I have also considered the uncontested report of Mr De Jong of 24 November 1998 which outlines the applicant's wife who is currently suffering severe depression and anxiety which would be likely to be exacerbated if she was required to return to the Philippines.
As with many such applications, a balance must be reached between conflicting primary considerations in order to reach what, in this case, would be the preferred decision. While the Tribunal does not condone the conduct of the applicant (or his wife) and is critical of it in as far as it concerns the stated immigration malpractice, the Tribunal is satisfied that the greatest weight should be accorded to the interests of the child Sandra, particularly given she has lived in Australia all her life and is an Australian citizen. The Tribunal considers that greater harm is more likely than not to result from disadvantaging the interests of an Australian citizen child by either her separation from her parents (that is, if she is to remain in Australia to complete her education) or her having to undertake a major life and educational readjustment if she returns to the Philippines as the result of the applicant not being able to obtain a visa in Australia, than arises from giving greater weight to the other two primary considerations reviewed.
For that reason, the decision under review is set aside and the matter is remitted to the Minister on the basis that the general discretion contained in s.501(1) of the Act ought be exercised favourably to the applicant in considering the grant of a class AX subclass 103 parent visa.
I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President G.L. McDonald
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  24 September 2001
Date of Decision:  25 September 2001
Counsel for the Applicant:           Mr P. Rose
Solicitor for the Applicant:           Messrs Wimal & Associates
Solicitor for the Respondent:       Ms F. McKenzie, Blake Dawson Waldron