Re Barattini and Minister for Immigration Multicultural and Indigenous Affairs

[2005] AATA 157

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 157

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/467

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NIGEL BARATTINI

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date21 February 2005

PlaceMelbourne

Decision The decision under review is affirmed.

[The Hon C R Wright QC]

Deputy President

CATCHWORDS

Migration - character - visa applicant making and presenting false case for protection visa to DIMIA and RRT - making bogus claims for special needs relative visa - giving false and unsatisfactory evidence to Tribunal - discretion - best interests of visa applicant's children - protection of Australian community - expectations of Australian community - hardship issues - visa refusal affirmed.

Migration Act 1958 – s501

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Wan v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 133

Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

REASONS FOR DECISION

21 February 2005 The Hon C R Wright QC., (Deputy President)   

The Application and the Decision Under Review

1.      This is an application to review a decision of the Minister’s delegate made on 10 November 2003, refusing to grant a Class UF Subclass 309 Spouse (Provisional) visa to Rowena Barattini, (“the visa applicant”), the wife of Nigel Barattini (“the review applicant”) on character grounds.

2. The delegate’s decision was based upon his assessment that the visa applicant had not been truthful in her dealings with the Department or the Refugee Review Tribunal with respect to her attempts to stay in Australia after arriving here on a one month visitor’s visa on 7 August 1997. The delegate also took the view that the visa applicant had been untruthful in the information provided in her spouse visa application. These considerations led him to conclude that the visa applicant had not shown that she passed the character test prescribed by s501 of the Migration Act 1958 (“the Act”). The delegate considered exercising his discretion under s501 of the Act in the visa applicant’s favour, but declined to do so.

Relevant Background

3.      On the expiration of her visitor’s visa, the visa applicant did not depart from Australia and on 5 September 1997 she applied for refugee status with the assistance of a solicitor, Mr Willy Villaneuva.

4.      The visa applicant’s application for a protection visa was based on allegations that whilst conducting a video/photography business in Manila in the Philippines before coming to Australia, she had occasion to refuse demands for higher pay made by 2 of her male employees and, in consequence she was subjected to threats and intimidatory behaviour by the employees and communist union officials.   As a result she said she feared for her life and left the Philippines to avoid harm.

5. Her claim for a protection visa was refused at Departmental level on 18 September 1997 and she sought review by the Refugee Review Tribunal (RRT) on 21 October 1997. On 16 June 1998 the RRT affirmed the departmental decision. On 18 July 1998 the visa applicant married Jason Frederick Bryson, an Australian citizen. The visa applicant then sought personal intervention by the Minister on humanitarian grounds under s417 of the Act. This took place on 22 July 1998. On the same date she was granted a bridging visa valid until 22 October 1998.

6.      The visa applicant (now represented by Migration Agent Chris Muthu) applied for a special needs relative visa on 28 September 1998.   On the same date the visa applicant was granted a bridging visa E with validity to 15 December 1998.

7.      On 10 November 1998 the visa applicant’s application for a special needs relative visa was refused.   On 16 December 1998 the bridging visa of 28 September 1998 expired and in consequence she became an unlawful non-citizen on the same date.   The following day (17 December 1998) with the assistance of Mr Muthu she sought Ministerial approval under s48B to lodge a second protection visa application.   In his letter to the Minister, Mr Muthu said “Ms Rowena Diva claims that she had to leave her country because of threats and harassments that she experienced at the hands of the Communist Party of the Philippines.”

8. In a letter to the visa applicant dated 22 December 1998, addressed to her at 11/1436 Canterbury Road, Punchbowl, NSW 2196, the Minister’s office advised her that her s417 application of 22 July 1998 was refused.

9.      In a letter to the visa applicant’s agent, Mr Muthu, dated 20 January 1999, the Minister’s office advised that because of failure to meet the guidelines the s48B application of 17 December 1998 would not be referred to the Minister.

10. On 31 December 1998, the visa applicant again applied for a bridging visa. This appears to have been prepared with Mr Muthu’s assistance. The grounds of the application are not clearly stated, but it appears that it is related to the s417 application to the Minister. The bridging visa application does not disclose that s417 application had been refused on 22 December so presumably this fact was unknown to, or had been forgotten by the draftsman.

11.     On 24 February 1999 the visa applicant applied for a bridging visa with Muthu’s assistance based upon her s48B application to the Minister.

12.     In a letter dated 14 April 1999 a departmental officer requested the visa applicant to attend the Bankstown office for assessment of her most recent bridging visa application.    This was addressed to her Canterbury Road unit.   On 18 February 1999 a visit by compliance officers to that address had failed to locate the visa applicant.     A similar visit on 30 April 1999 was equally unsuccessful.   A resident Ms Carodan, who knew the visa applicant, said that the visa applicant had lived there for a short time but had left without leaving a forwarding address.

13.     On 4 May 1999 the 2 bridging visa applications dated 31 December 1998 and 24 February 1999 respectively were refused.   The visa applicant was notified by letter sent to her Canterbury Road address.   The letter advised the visa applicant that she was now unlawfully in Australia.

14.     On 7 May 1999 Chris Muthu’s office wrote to the Bankstown DIMA office requesting until 10 May 1999 to advise their client on her immigration status and, on 13 May 1999, the applicant (with Muthu’s assistance) lodged yet another bridging visa application – this time on the ground that she was pregnant.   The visa applicant was granted a bridging visa on the same date effective until 18 June 1999.   On 29 June 1999 she applied for and was granted a further bridging visa on the basis that she had just given birth to her son, Harold Shane Diva Sahin (born 6.6.1999).   On 2 July 1999 the visa applicant applied for and was granted a final bridging visa until 18 July 1999 for supervised departure.   On 18 July she left Australia.

15.     In or about April 2001, the visa applicant met the review applicant in the Philippines.   On 12 May 2002 they were married in Manila.

16.     On 2 July 2002 the visa applicant lodged the current spouse visa application.   She was sponsored by the review applicant, an Australian citizen.   The respondent alleges that in the application she declared, in answer to question 6, that she had never had a visa refused, in answer to question 67 that she had never had any outstanding debts to the Australian Government or public authority, and in answer to question 69 that she had lived continuously at the same address for the 2 years that she had been in Australia.

17.     The respondent contends that these answers were intentionally false, imputing an intent to obtaining a migration advantage to the visa applicant.   Both the visa applicant and her husband, the review applicant, gave evidence at the AAT review hearing in Melbourne on 22 November 2004.   She was evasive and unconvincing.   I am not satisfied that anything said by her as to the issues arising in this case were true, in the absence of confirmation by her husband.   By contrast he gave clear and credible evidence and generally appeared to be reliable.   The review applicant assisted his wife to complete the spouse visa application.   He said he took the view that question 6 was directed to the issue of whether or not the visa applicant had ever been refused entry into Australia.   Scrutiny of the question reveals that, in literal terms it is broader than this, but, as I pointed out in my recent decision (Dezoller and MIMIA dated 9 February 2005, paragraph 61) there is a latent ambiguity in this question.   I accept the review applicant’s explanation as to why the question was answered “No”.    I do not think there was an intent to mislead in the way question 6 was answered.

18.     At the time the spouse visa application was completed the visa applicant owed $1,000 as a post decision fee to the RRT.   This was not paid until 1 October 2002.   It was suggested by the visa applicant that this was a simple oversight on her part.    I think there are sound reasons for concluding this answer was deliberately false however.   The visa applicant, although a very poor witness, is an intelligent woman.    She was provided with an interpreter to assist with her evidence, but she had little need for the interpreter’s services.   On one occasion at least I am quite sure she asked for the interpreter’s help to give her breathing space to answer an awkward question.    The visa applicant is currently employed in Hong Kong as a sales supervisor at the World Finance Corporation.  Before coming to Australia she was proprietor of a small video and photography business, and she also worked part-time for an insurance company as a unit manager.   She holds a University degree of Bachelor of Science in Tourism.   She has studied hairdressing.

19.     Question 69 asks “In which countries have you lived for 12 months or more during the last 10 years.”  The visa applicant’s answer is (inter alia) “Australia”.   Dates lived there “From 08/1997 to 07/1999”.   Last permanent address in that country “5/57 Harris Street, Harris Park”.   This series of responses does not amount to an allegation by the visa applicant that she “lived continuously a the same address for the 2 years that she had been in Australia.”     The respondent’s contention is wrong.   Of the character issues alleged to have arisen out of the spouse visa application only the allegation of falsity arising from question 67 has any validity.  Of itself it is of little weight.  There are, however, much more serious issues arising from the visa applicant’s conduct in Australia between 1997 and 1999.  I now turn to these matters.

20.     On the evidence contained in the exhibits and given orally at the hearing I am left in little doubt that the visa applicant came to Australia initially, not for the primary purpose of visiting a relative as she claimed, but for the purpose of working to make money and to take whatever steps she could to acquire long term or permanent residency here.

21.     At the Tribunal hearing on 22 November 2004, the visa applicant admitted that the grounds advanced for her seeking a protection visa in September 1997 were not true and that she pursued those false claims before the RRT by giving false evidence.  She claimed that the false material was originally the idea and product of Mr Willy Villanueva.  In her Statement (Exhibit A1) paragraphs 5 and 6 she said:

“5.. . . He asked me some questions about my background, family, work history and any problems I had experienced in the Philippines.  I did not make up the claim myself but simply signed an application form that was completed by the agent without reading carefully what I was signing.

6.Mr Villanueva made the RRT application.  He again included false information in the application.  I was aware of the detail of the written submissions that the agent wrote to the RRT, but he warned me before the hearing that I must “stick to the same story or you will go to jail”.  I attended the RRT hearing on my own as Mr Villanueva declined to accompany me to the hearing.  At the hearing I felt I had no choice bit [sic] to maintain the false claim.  I am not blaming my migration agent as I am ultimately responsible for all statements made by me or by agent on my behalf although I ask that consideration be given to the level of advice and representation he provided to me.”

22.     Whilst protesting that she is not blaming Mr Villaneuva for her deceit, she is clearly doing just that.  She is saying that he fabricated grounds for her protection visa application and did the same with her RRT application.  She is saying that she trusted him and simply signed an application not knowing what he had, or would put in it.  She is saying that when she went to the RRT she was in a cleft-stick – she either repeated his falsehoods or faced imprisonment.

23.     How far Mr Villaneuva was involved in the deliberate plan to present a false case both to the department and later to the RRT, I am unable to say, but I have no hesitation in saying that I do not believe the visa applicant’s protestations of innocence and dilemma.  I am of the opinion that she was clearly complicit in fabricating and then presenting the false applications.

24.     The false case was used thereafter as justification for subsequent applications to the Minister, which in turn were instrumental in providing the visa applicant with bridging visas allowing her to remain Australia.

25.     The visa applicant continued her quest for Australian residency through the agency of Chris Muthu.  She made a special needs relative application with his assistance.  Again she blames her agent for taking this course and apparently inventing the spurious grounds on which it was claimed.  This is what she says in Exhibit A1 at paragraphs 7 and 8:

“7.. . .Mr. Muthu, on whose advice I relied, made the application on my behalf and I never knew, or had forgotten who had been named in the “special need relative” application.  I have since learned from the T-documents that my husband Jason Bryson was the person in need.  My recollection of the dates and events surrounding the “special need relative” application is vague.  I think Mr. Muthu did not advise me the application had been refused.  I believe I called DIMIA to enquire and was advised my application had been refused.  By this time I was already unlawfully in Australia although I had not been aware of this fact.  I believed I was lawfully in Australia until my contact with DIMIA in May 1999.

8.I recall, again somewhat vaguely, that the bridging visas issued to me had made my stay in Australia lawful and made it lawful for me to work.  The period of unlawfulness may have occurred because Mr. Muthu did not advise me my application had been refused.”

26.     I am satisfied that the visa applicant knew full well that the special needs relative application was entirely without substance or merit at the time she made it.  This view is in no way affected by the visa applicant’s counsel Mr John Gibson’s production of the decision by Senior Member Ettinger in the case of Muthu and Migration Agents Registration Authority [2004] AATA 608. In that decision Ms Ettinger found (inter alia) that Christopher Muthu was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. Mr Gibson was unable to establish a direct parallel between the type of conduct for which Muthu was criticised by Ms Ettinger but I am certainly prepared to assume for present purposes that he was privy to false statements made by clients from time to time and sometimes filed applications doomed to failure for lack of substance; but the issue here is whether the visa applicant was complicit in the presentation of the entirely unmeritorious special needs relative application. I am satisfied that she was.

27.     The visa applicant’s special needs relative visa application was refused on 10 November 1998.  Her then extant bridging visa expired on 15 December 1998.  She thereupon became an unlawful non citizen for a period of about five months until the next bridging visa was granted on 13 May 1999.  She says that she was not aware that she did not hold a valid visa at that time and blames Muthu for failing to advise her that her special needs relative visa had been refused.  She also claims that she was unaware that she was unlawfully in Australia at that time.  In response to these claims the respondent makes the following points:

“36.. . .

-the visa applicant was properly notified of the expiry date of her bridging visa and had previously held three other bridging visa;

-the visa applicant was properly notified of the refusal of the special need relative visa application and was specifically advised that her bridging visa would expire on 15 December 1998;

-on 22 December 1998, the visa applicant was directly notified that the Minister refused to consider her request that she exercise her discretion pursuant to s417. In this notification, the visa applicant was asked to contact DIMA about her immigration status;

-in the period that the visa applicant was unlawful, she made two applications for bridging visas.  If the visa applicant was not aware that she was unlawful, it is not clear why she made these applications;

-both the applications for bridging visas were signed by the visa applicant and submitted by the visa applicant’s migration agent;

-when the visa applicant made the application for bridging visas, DIMIA attempted to contact the applicant at her residential address provided both by mail, and in person (see below) but the visa applicant did not respond; and

-one day after the bridging visa expired on 15 December 1998, the visa applicant applied to the Minister for dispensation pursuant to s48B of the Act to allow the visa applicant to make a second protection visa application.

37.      The respondent notes that the visa applicant was an unlawful non-citizen in the period where she had exhausted all avenues of appeal in her protection visa application and, after making the special need relative visa application, exhausted the visas that she could apply for.  In her statement of facts and contentions, the visa applicant admits that her intention was to stay in Australia so that she could provide for her parents and her young daughter.  The visa applicant stated “I did what I did in Australia for the good of my family in Manila”.

38.      The respondent submits that it is open for the Tribunal to infer that the visa applicant was aware, or was wilfully indifferent about, her immigration status during the period that she was unlawful because she wanted to remain in Australia. . . .”

In my opinion the respondent’s submissions are cogent and persuasive.  I accept them.   I find in accordance with the facts alleged and the inferences submitted.

28.     In my opinion the visa applicant has been a willing participant in the various bogus attempts which have been made on her behalf, firstly by Villaneuva and later by Muthu to secure a visa to stay in Australia.  Any suggestion by Mr Gibson, her counsel, that in the five years since leaving Australia she has re-established her good character has been entirely negated by her unsatisfactory evidence to the Tribunal on 22 November 2004.  She was evasive and untruthful as to contentious issues.  In my opinion, bearing in mind of course the provisions of the Minister’s Direction No. 21, she is not a person of good character.  Her attempted deception in respect of her two earlier substantive visa applications has been sustained and persistent.  In terms of deceptive conduct this has been a bad case.  Significant public expense has been involved in dealing with these matters.  She now expresses remorse and willingness to accept responsibility but I doubt the sincerity of these claims.  In my opinion present good character is not necessarily demonstrated by showing conscientious devotion to filial, uxorial,  or maternal duties over a period of years since the past character defects became manifest.  The more appropriate basis for satisfying the test, in my view, is to show positive steps taken towards redemption of past misbehaviours.  This may be shown, at least in part, by frankness and candour in dealing with past errors and confronting those issues with sincerity and truthfulness in subsequent dealings with DIMIA and relevant tribunals.

29.     I turn now to consider whether, notwithstanding my adverse character assessment, I should exercise my discretion in favour of the visa applicant to restore her prospects of securing a visa.  The first primary consideration I will examine in the best interests of the relevant children.   The review applicant is currently employed on an engineering project in Central China.  During this time he has temporary residency status in Hong Kong.  The visa applicant is 45 years of age and is now living in unit accommodation in Hong Kong provided by the review applicant.  The review applicant visits as often as he can but, owing to the distances involved, this is only about once every two months.  There is no dispute as to the genuineness of their marriage.  The visa applicant is a Filipino citizen and is the mother of two children who live with her.  Her daughter Julie Anne was born on 24 September 1994 as a result of the visa applicant’s relationship with a Filipino National.  Julie Anne remained in the Philippines while the visa applicant was in Australia between 1997 and 1999.  Her son Harold was born on 6 June 1999 in Australia as a result of her relationship with Hakki Sahin, who is claimed to be an Australian citizen.  Harold too is an Australian citizen.  During her stay in Australia the visa applicant was married to Jason Frederick Bryson from who she was divorced (Decree Nisi 2 March 2000; Decree Absolute 28 April 2000 – see Exhibit A4).  I have already referred to the visa applicant’s qualifications and past and present employment.

30.     The review applicant is 54 years of age.  He was divorced from his first wife on 28 March 2002.  He has two teenage children from that union who live with their mother in Australia.  He supports them financially.  They visit him and the visa applicant in Hong Kong from time to time.  The review applicant knew that the visa applicant was having difficulties with DIMIA when they married on 12 May 2002.  He first heard that she had overstayed and made false claims within two months of their meeting.  The review applicant is a long term employee (11 years) of SMEC International Pty Ltd (SMEC) as their Senior Highway Engineer.  Evidence was given by Pamela Behncke, the Human Resources Manager at SMEC.  She said that the review applicant is likely to remain in China for about 12 months and would then return to SMEC’s head office at Cooma in New South Wales.  She said that his contractual terms of employment require him to work any where he may be sent in the world.  The company does a lot of infrastructure work “in Iraq, Afghanistan countries like that, dangerous locations” she said.  In his evidence the review applicant expressed the wish to work more in Australia than overseas.  He has worked overseas three years out of the last ten.  He felt unable to say what SMEC may require of him over the next few years.  The review applicant says he has made cursory investigations as to the prospects of professional employment in the Philippines.  He said unemployment there is very high.  He has not thought of returning to England, his country of origin.

31.     It seems to me that the review applicant holds a very responsible position and has professional obligations to his employer, the very nature of which require him to be absent from his home for substantial periods of time.  The extent to which he will be able to settle down to a “normal” domestic routine in Cooma or elsewhere in Australia in the immediate future is by no means clear.   In his present job in China he probably has more direct contact with the visa applicant and her children in Hong Kong than he would have if they were living in Australia.  

32.     In his statement dated 22 November 2004, the review applicant gives a detailed account of his relationship with his wife’s children and his hopes and prospects of adopting them.    Both children are receiving appropriate education in Hong Kong.   Harold who appears to suffer from asthma and emotional problems has improved since living in Hong Kong.  It is perhaps noteworthy that although an Australian citizen, Harold has spent only the first few days of his life in this country. Since then he has lived with his mother in the Philippines or in Hong Kong. Nonetheless his status as an Australian citizen is very significant (See Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 per Burchett J @ 616.

33.     The review applicant says he has established a close bond with the children who are still learning to speak English.   Both children had tuberculosis while living with their mother in the Philippines before the review applicant met her.    They have now recovered.   It is apparent that both children are receiving adequate health care and educational opportunities in Hong Kong.   The applicants submit that in the future these opportunities would be continued in Australia.   The review applicant says he will be unable to remain in China, and his wife and her children will be unable to remain in Hong Kong, once his work on highway construction in central China has finished.   The applicants have no children of their marriage.  In answer to the arguments advanced by the applicant the respondent makes the following  points:

“62.1The visa applicant’s children grew up in the Philippines and Hong Kong.  The applicant’s children are not being disadvantaged by being taken away from Australia.  The visa applicant’s first child has not spent any time in Australia, and the visa applicant’s second child only spent six weeks in Australia.

62.2The visa applicant has not demonstrated that the conditions that her children live in at present in Hong Kong would be significantly worse than in Australia.  There is no evidence that the visa applicant and her children would have to return to the conditions she refers to in the Philippines.  The visa applicant now has the additional financial support of the sponsor and is no longer a single mother.

62.3Although the sponsor claims to have a strong bond with the visa applicant’s children, the respondent submits that the visa applicant’s children have only spent about one year in Hong Kong during which time the evidence of the sponsor was that he was primarily based in China.

62.4The visa applicant’s children are young and would be able to return to life in the Philippines, where they grew up, or to another third country, where they are at present, or to the sponsor’s country of birth.

62.5The visa applicant’s elder child stayed in the Philippines in the two years that the visa applicant was in Australia.”

On the material available I think it is reasonable to conclude that the best interests of the visa applicant’s children, which is a primary consideration under the Minister’s Direction No. 21, would best be served by their living with the applicants in Australia.

34.     The significance of this finding was discussed at length by the Full Court of the Federal Court in Wan v Minister of Immigration and Multicultural Affairs (2000) 107 FCR 133. The Court was at pains to point out that such a finding did not automatically entitle a person determined to be not of good character, to obtain a visa for entry to Australia. Were it otherwise persons who had failed the character test would be able to subvert the primary purpose of Section 501 of the Act by bearing or fathering a child – a rather radical ploy which has not been entirely unknown on past occasions. There is of course no room for such a suggestion in the present case.

35.     The two other primary considerations to which the Tribunal must give attention to accord with the Minister’s Direction No. 21 are:

(a)the protection of the Australian community; and

(b)The expectations of the Australian Community.

I regard it as appropriate to deal with these issues only after making a determination as to the best interests of the children.  The Direction requires that “Decision-makers” must have regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.  In dealing with the issues involved as to the protection of the Australian community it is necessary to consider the seriousness and nature of the conduct leading to the adverse character assessment, the likelihood of its repetition by the visa applicant and the prospect that visa refusal will serve as a general deterrent to the commission of similar misconduct by others.

36.     The visa applicant has not been prosecuted for any offence but it is clear on the evidence that in respect of her application for a protection visa she made false statements.  Such conduct is “very serious” in terms of paragraph 2.6 (c) of the Minister’s Direction.  In my view its seriousness was compounded by the visa applicant’s false evidence to the RRT and her unsatisfactory and untruthful evidence to this Tribunal.  The false story was also used as a basis for seeking Ministerial intervention and the acquisition of bridging visas.  The oft repeated words of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 are apt.

“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, . . . 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.”

37.     The visa applicant’s persistence with the false story and her unacceptable behaviour with regard to the special needs relative visa application suggest to me that she may well continue to be deceitful if and when dealing with public instrumentalities in Australia, although the influence of the review applicant may tend to curb such conduct if their marriage endures.

38.     From the perspective of general deterrence, I take the view that people, whether in the Philippines or elsewhere, who become aware of a consistent approach by decision-makers refusing to reward bad cases of deceptive and misleading misconduct with visa approval, are likely to be deterred by such knowledge.  Plainly this view is not inflexible.  It is often submitted to me that intending visa applicants are unlikely to become aware of the outcome and the reasons for such an outcome in an individual case because media exposure is not accorded to any, save high profile applicants, and in any event confidentiality orders sometimes apply.  I do not accept such arguments. If a consistent approach is manifested by the Tribunal in such cases, migration agents and solicitors will soon pass the news on to their customers or clients, and I suspect the ethnic grapevines serve a similar purpose.

39.     The “expectations of the Australian community” are now taken to be the expectations of fair minded well informed members of the community with a sound knowledge of the facts of the individual case.  Such a concept is often difficult to apply in practice.  Fair minded individuals often have radically different views as to an appropriate outcome for reasons, which on either side of the argument  are quite sound and legitimate.  Nonetheless in this case I think there would be little sympathy or support for the visa applicant herself.  She has lied and caused significant expense to the taxpayer.  It may be said that her two children and her marriage to a man who had full knowledge of her principal misdeeds before marriage should not provide the leverage to obtain a favourable outcome, notwithstanding my determination as to the children’s best interests.  On the whole I am of the view that the Australian community would expect the visa in this case to be refused.

40.     Other considerations which must be borne in mind are the potential hardships to each applicant if the visa is refused.  These issues have already been touched upon in dealing with the children’s’ interests and the relevant components of the consideration process are dealt with in paragraph 2.17 of the Minister’s Direction.  If the visa applicant cannot come to Australia she may return to the Philippines.  She and the review applicant may be able to live in England.  They have both lived abroad from time to time during their lives.  As the respondent submits, if they set up a matrimonial home in the Philippines there is no reason to expect that they would be living in the unsatisfactory conditions in which the visa applicant was living whilst a single woman.  They both have a substantial earning capacity and there is no reason to suspect they could not maintain a good standard of living no matter where they live.  In any event the review applicant may well spend long periods of time apart from the visa applicant even if their home base is Australia.  It is not claimed that the visa applicant has relatives in Australia.  It has not been suggested that the review applicant would be unable to secure residency in the Philippines.  I do not overlook his claim that employment prospects in the Philippines for people in his profession are not good.

41.     Adopting the balancing process mandated by the Minister in Direction 21, paragraph 2.2, I have concluded that the decision under review should not be disturbed.  Accordingly I determine that the decision under review is affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of

The Hon C R Wright QC., (Deputy President)
Signed:  K L Miller (Administrative Assistant)

Date of Hearing   22 November 2004
Date of Decision   21 February 2005
Counsel for the Applicant         Mr John Gibson
Solicitor for the Applicant          Cape Thornton
Counsel for the Respondent     Mr Bryan Wee
Solicitor for the Respondent     Australian Government Solicitor