Re Batula and Minister for Immigration and Multicultural Affairs
[2001] AATA 496
•6 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 496
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1648
GENERAL ADMINISTRATIVE DIVISION )
Re TEODORICO BATULA
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date6 June 2001
PlaceSydney
Decision The decision under review is affirmed.
.........(signed 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 – whether Minister's direction under section 499 of the Migration Act 1958 is binding on the Tribunal - desirability of consistency in tribunal decision-making
Migration Act 1958 – sections 234, 235, 417, 499, 501
Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514
Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443
Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554
Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Lachmaiya and Minister for Immigration and Multicultural Affairs (1994) 19 AAR 148
Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023
Re Manlangit and Department of Immigration and Multicultural Affairs [2000] AATA 400
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Santos and Minister for Immigration and Multicultural Affairs [2000] AATA 567
Re Tuiono and Minister for Immigration and Multicultural Affairs [2001] AATA 92
Re Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731
REASONS FOR DECISION
6 June 2001 Deputy President J Block
(a) This is an application for the review of a decision by a delegate of the Respondent, made on 21 September 2000, refusing an application for the grant of a Class UF Sub-class 309 Spouse (Provisional) and a Class BC Sub-division 100 Spouse (Migrant) Visa by Mrs Leonida Ricardo Batula ("the Visa Applicant") and in respect of which the Applicant, her husband, was the sponsor.
(b) Dr Arun Garg, a migration agent, appeared for the Applicant and Mr Paul Loftus of Blake Dawson Waldron, solicitors, appeared for the Respondent. The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
Exhibit A1 is a statement by the Applicant dated 8 April 2001;
Exhibit A2 is a statement by Dominga B. Aguindang dated 27 February 2001 and which reads as follows:
I am Dominga B. Aguindang, a licensed pharmacist, Filipino citizen presently residing at Abatan, Buguias, Benguet.
Due to the problem of unemployment here in the Philippines, I am planning to try my luck overseas. Since Australia has long been my preference, I have decided to go there using a tourist visa processed through an agent, as some usually do.
However, a concerned friend of mine, Mrs. Leonida R. Batula, upon learning of my plan, advised me to apply directly to the Australian Embassy and seek for proper assistance there for security reasons. She took example of herself who has gone there through the same process only to find herself in deep trouble. Her narration of her painful experiences has made me reconsider my plans. Thus, with her sincerity and deep concern for me not go through the same fate prompted me to seek first your official advice before making a decision.
Finally may I take this opportunity to inquire from your good office the requirements for a working visa and likewise the procedures on how to acquire such.
Thank you in the anticipation for your favourable consideration on this matter.
Exhibit A3 is a character reference by Joyce A. Rowe, a marriage celebrant who married the Applicant and Visa Applicant;
Exhibit A4 is a character reference by Father Jerry Ignacio of Jesus is Lord Church Australia Inc;
Exhibit A5 is a statement by Sharon King, manager of King's Nursing Service;
Exhibit A6 is a statement by Evita Galope, mother of the Applicant;
Exhibit A7 is a statement by Cherry Silverio, sister of the Applicant;
Exhibit A8 is a statement by Catherine Munoz, sister of the Applicant;
Exhibit A9 is a statement by Franklin Silverio, brother of the Applicant;
Exhibit A10 embodies a number of character references in respect of the Visa Applicant, by persons in the Philippines;
Exhibit A11 is a batch of documents referable to the health of the Visa Applicant;
Exhibit R1 is the Visa Applicant's application to the Refugee Review Tribunal ("RRT") for the review of the refusal by the Department of Immigration and Multicultural Affairs ("DIMA") of her application for a protection visa.
(c) I have cited the Minister for Immigration and Multicultural Affairs as the Respondent, despite references in the T Documents to the Department of Immigration and Multicultural Affairs, because the relevant decision was made by a delegate of the Respondent Minister.
(d) The Applicant had intended to call as witnesses Evita Galope, Franklin Silverio, Cherry Silverio, Catherine Munoz, Exequile Batula and Jerme Batula. All of the persons in question are close relatives of the Applicant. Their statements or character references (except for Exequile Batula and Jerme Batula, in respect of whom no statements or character references were filed), as applicable (Exhibits A6, A7, A8 and A9), were admitted with the consent of Mr Loftus, on the basis that he did not require the authors thereof to present themselves for cross examination, but that he reserved his right to comment on the weight or probative value to be attributed to all of them. I use the term "character references" in respect of all statements or references which bear character and including, in particular, Exhibits A2 – A11 (inclusive). Oral evidence was given by each of the Applicant and the Visa Applicant and in the case of the latter, by telephone link to the Philippines.
It is convenient in the first instance, by way of background, and in order to set the scene, to gather in this paragraph 2 a number of relevant documents or extracts from documents which are as follows:
(a) The Applicant's Statement of Facts Issues and Contentions reads as follows:
Can the visa applicant satisfy the Tribunal that she passes the character test having regard to:
a. S501 (6)(C)(ii) having regard to Leonida Batula's past and present general conduct of the Migration Act 1958.
b. Can the visa applicant satisfy the concept of good character as discussed in Irving v Minister for Immigration Local Government and Ethnic Affairs (1996)139 ALR 84
In respect of s 501(6)(c) of the Act, the Direction under s 499 of The Migration Act 1958 provides that the decision-maker must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
Section 501(6)(c)(ii): past and present general conduct:
Paragraph 1.9 of the Direction provides, in respect of this subsection, that any good acts of the non-citizen after reprehensible conduct are indications of 'character reform'. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character.
Exhibit 1, 2, 3 & 4 may satisfy the Tribunal that Visa Applicant is a good character person. In this case for the purposes of passing the character test visa applicant's past and present conduct in relation to Australian Immigration Law is analyzed here with:
Please not we have noted some inconsistency in the visa application interview with the Manila post. Benefit of doubt should be accorded to the visa applicant, as she may not have put the answers in correct context & or loss of memory due to time gap and other reasons or same question answered with additional information not known to applicant before but learnt during one year from the date she arrived in Australia.
Visitor Visa
Visa applicant was in secondary role and certainly not a precipitating one at times visitor visa was granted to her. Please refer to T6 documents. Following are the observations:
I. Visa applicant as stated in her interview at T24 (162) she does not remember signing the Form 48, also the signature of the visa applicant does not match with her signatures else where, hence it is safe to assume that she never read information page of Form 48 further there is no question which state that she can not visit Australia to "look for job". She did not work in Australia between 17/11/1999 to 17/01/2000 hence she abided by the visa conditions placed on her visitor visa.
II. Another point we note here is that we are very much surprised to learn that a first time traveler from Philippines is not interviewed before the visitor visa grant. As pointed out by the Shadow Minister Hon. Con Sciacca (ALP), possible conduct of Locally Engaged Staff and the Travel Agency Swire Travel Philippines Inc cannot be ruled out. This proves that visa applicant was in a secondary role and the travel agency is the participating one in forcing the applicant to unknowingly disrespect Australian Immigration Law.
III. Another key argument is the application of schedule 4 criteria 4001 of the Migration Regulations 1994 as amended, and character test s501 of the Migration Act 1958 is never invoked for the applicants who apply for other types of temporary and permanent visas in Australia after arriving in Australia on visitor visas. These applicants do get work permissions or visa upon arrival. Further in Partner Migration there are numerous cases in which visa applicants were found working either in breach of there visa conditions or no work conditions and these applicants later on were released in the community on Bridging visa E and are subsequently granted Partner Migration Visa 820/801. Meeting criteria 4001 is a requirement in these cases too. Hence to look for work or job after arriving in Australia on a visitor visa should be viewed leniently as the visa applicant is not an expert in Migration Law.
IV. Visa Applicant did not work illegally in Australia i.e. during the time her visa was placed with no work condition. She started working in February 2000 and at that time she was on a bridging visa A with work permission. She repeatedly said in her interview that she always wanted to "work lawfully" in Australia.
Refugee Visa
Visa applicant is again in secondary role & certainly not a precipitating one. Following are the observations:
I. We first must here emphasize that her agent is an unscrupulous migration agents. His application for MIA membership is declined by MIA due to lots of complaints pending against him in MARA. I had an interesting encounter with one of his client in early January 2001. Father who is an Australian Citizen, his wife gave birth to a baby in December 2000. Parents visitor visa was expiring on 24 December 2000. They gave him the case for an extension. He some how did not apply for an extension and the visiting parents became illegal. On 08 January 2001 Australian Citizen came to consult us and told the same. Further he told me that this migration agent has suggested to them to apply for a refugee visa. I have come to know that he has people from ethnic community who work on commission for him and they are on constant lookout for uninformed visitors at most common places in Australia to go and seek immigration advice from this unscrupulous migration agent. Minister for Immigration Hon. Philip Ruddock has been critical in the past for AUS$ 30 work permission by applying refugee visa. His visionary approach placed the responsibility upon migration agents and immigration lawyers to inform the applicants about the downside of applying for a refugee visa. One immigration lawyer Mr. Adrian Joel in our knowledge does it by applicant signing a letter to affirm Ministers views. This unscrupulous migration agent does not. As such we do not practice Refugee law and cannot comment about industry practice in general.
II. We also note that visa applicant was granted visitor visa on 11 October 1999 is valid until 11 October 2000. This visa can be extended in Australia upto 11 October 2000. Further Visa applicant meet the review applicant on 18 November 2000. It is very hard to believe that this unscrupulous migration agent did not dissuade applicant not to apply for Protection Visa.
III. Visa applicant got involved with review applicant. They started dating together. Review applicant brother Frank objected to this relationship. He thought that she is hooking his brother to stay in Australia. She felt hurt and decided to stay away and not to marry review applicant until she stands on her own feet's. At this point in time she meet this unscrupulous migration agents commission agent at Circular Quay. She just wanted to stay lawfully and work legally so that she can prove to the review applicant's brother that she is not hooking up review applicant. These strong emotional reasons led her to be exploited by this unscrupulous migration agent.
IV. If this unscrupulous migration agent would have advised the visa applicant professionally that if she marry the review applicant on or before 17 January 2001, she will be able to get subclass 820/801 as well as work permission while remaining on Bridging Visa A, this situation never ever has resulted.
V. We also state that in the recent advertisement targeted towards the potential boat people stating that Australian waters are not safe for boat travel to enter illegally in Australia and Australia do not welcome illegal boat people, it would be more effective if the Visa Applicant before the primary decision would have been advised that a false or misleading claim to lodge a refugee application if not successful leads to a person becoming a Character Concern to Australia in their any future application for residence. Information and opportunity to withdraw the PV applications in the event claims are false will lead to excellent result and will save the uninformed applicants from unscrupulous agents. If such information is handed over to all the visitor visa applicants from countries like Philippines will act as an effective deterrent. In the visa applicant case this has not happened.
VI. Visa applicant always stated her desire to "work Lawfully". She may have been less than diligent in her dealings with the migration agent, but her role in the whole matter was very much a secondary role with Department & RRT and certainly not a precipitating one. Her internal conscience could not allow her to attend interview with RRT. There is no suggestion from T documents that DIMA ever invited her for the interview ever and this explain the inconsistency reasons for which we seek benefit of doubt in favour of applicant.
VII. At T7 (61) we note that the migration agent has asked visa applicant to sign on a blank paper on which he later on prepared a false statement for and on behalf of the visa applicant. The statement is so general in nature that it cannot constitute a well-founded fear of persecution with a real chance to meet the strict criteria of the refugee definition.
VIII. Visa applicant comes from a good family, it is her first love with the review applicant and her desire to lawfully live and work in Australia led her to disobey the immigration law. Her views about political problems in Philippines are not incorrect. During the interview with the migration agent she expressed the problems faced by citizens in General. It is the migration agent who first should have advised her that these views and problem do not meet the tough requirements of the refugee application and should have dissuaded her at first place.
IX. As per International Labour Organisation "work is the basic human right for survival". In nature birds migrate in search of food, animals migrate in search of better & greener pasture. Visa applicant traveled to Australia for a better life from a poor country Philippines. Her dreams lead her to be cheated by Travel Agency Swire Travel Philippines Inc, in Philippines, the commission agent and the migration agent in Australia.
X. Once again our key argument is the application of schedule 4 criteria 4001 of the Migration Regulations 1994 as amended, and character test s501 of the Migration Act 1958 is never invoked for the applicants who apply for MRT reviews, which are affirmed and later they apply for partner migration outside Australia and are being granted the same.
XI. We are not defending the review applicant. She did disobey our immigration laws. What we are presenting is the objective and subjective views only for the purposes of her character analysis in immigration sense.
PAST & RECENT GOOD CONDUCT IN IMMIGRATION SENSE
XII. Enquiry received by us from Ms. Dominga B. Aguindang which demonstrate visa applicant present good conduct in relation to Australian Immigration law. Please note this is independent evidence received by us.
XIII. Sincere apology from her, T20 (151) & Honest interview at Manila Post T24 (157-163).
XIV. Payment of Australian Taxes.
XV. Departing Australia legally on Bridging Visa A T25 (164) and not extending her stay by applying to Minister under s 417 of the Migration Act 1958
XVI. Visa applicant did not work illegally in Australia at any time during her stay.
In respect of s 501(6)(c) of the Act, the Direction under s 499 of The Migration Act 1958, we now respectfully submit that the Tribunal may set aside the decision by exercising its discretion and finds that she passes the character test taking into account all the above relevant circumstances of the visa applicant's case, including evidence of rehabilitation and recent good conduct in immigration sense.
2.Can the visa applicant satisfy the Tribunal that she can satisfy the direction under s499 of the Migration Act 1958 Part 2 – Exercising the discretion having regards to:
Part 2 of the Direction: Primary considerations in exercising the discretion, if a person does not pass the character test
Pursuant to the Direction, where the decision maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened. Evidence of good acts and recent conduct is also relevant to the exercise of the discretion.
Enquiry received by us from Ms. Dominga B. Aguindang which demonstrate visa applicant present good conduct in relation to Australian Immigration law. Please note this is independent evidence received by us.
In this case for the purposes of passing the character test visa applicant's past and present conduct in relation to Australian Immigration Law is under question. Visa applicant's good act and recent conduct in immigration sense after reprehensible conduct in immigration sense are indications of 'character reform'. Exercising the discretion may be appropriate in this case.
Paragraph 2.3 of the Direction provides that, in exercising the discretion, decision-makers must have regard to the following primary considerations:
a. the protection of the Australian community, and members of the community;
Visa applicant has no conviction or pending legal case in Australia and Philippines. Her secondary role in immigration sense, which is now reformed, does not bear any threat to the protection of the Australian Community, and members of the community. During her short stay of 5 months 16 days in Australia she received positive references from Marriage Celebrant, Pastor, Employer and her spouse immediate family members. These indicative references covers a wide range i.e., social, economical and religious parameters. Her experience in immigration sense has reformed her personality, she stated truth at the interview and also advised her friend to seek proper advise from Australian High Commission in Manila, taking into account her age also, it is not wrong to conceive that she will be a valuable member of the community in the years to come.
b. The expectations of the Australian community; and
The Australian community expects non-citizens to obey Australian laws while in Australia. Visa applicant has demonstrated character reform in immigration sense, which is the only law she did not obey in secondary role. The nature of the character concerns is such that the Australian community may find her a one off case who can be forgiven and be granted a visa.
c. the best interests of the child in respect of a parental relationship between that child and the person under consideration
This is a genuine marriage. Children will be born in this relationship in near future. Children will be Australian Citizen by birth or decent. In the event visa applicant is not granted a visa these children will be Australians by decent. This creates two possibilities.
I. Australian Citizens born and brought up in Philippines may not be as productive as if they were if born and brought up in Australia and they can relocate in Australia after turning 18 and may not be able to contribute as much to the society competitively. This may lead to an imbalance society in future. Another possibility is that visa applicant may lodge a further application after few years. This may led her to be granted a spouse visa at a later date. As such she is a reformed person and her past clearly demonstrate that she will not commit another mistake, this will lead to substantial hardship in the loving relationship. The Tribunal in numerous cases has set aside the decisions in which partners of Australian Citizens and Australian Permanent Residents committed serious crimes where children's are involved. Visa applicant sincerely seeks pardon and lenient view from the Tribunal.
Philippine is a poor country. Review applicant tried in December to find employment but could not. This may lead him to relocate back to Australia and may cause hardship in two young lives. Leniency and pardon helps in furthering Multiculturalism objectives.
(a) The protection and expectations of the Australian community:
Pursuant to paragraph 2.5 of the Direction, factors relevant to an assessment of the level of risk to the community include:
(a) the seriousness and nature of the conduct of the applicant;
FALSE STATEMENT PREPARED ON HER BEHALF BY THE MIGRATION AGENT
Even in the secondary role, misuse of immigration law, lesson learnt in life and reform in immigration sense leads to conclude that no offence ever will now be committed by the visa applicant in future.
(b) the likelihood that the conduct may be repeated (including any risk of recidivism);
Lesson learnt in life and reform in immigration sense leads to conclude that the likelihood that the conduct may be repeated and risk of recidivism is negligible. She served older Australian as an Assistant in Nursing. Employer reference is indicative that employer is willing to reemploy her as she was found extremely competent and will make positive contribution as a member of Australian Community.
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
There are no statistical information and numerous AAT cases from Third world countries, which can lead to prove that it has prevented or discouraged similar conduct. Informing potential applicant before granting visitor visas or before deciding refugee applications at primary stage can be more effective.
Other considerations
Pursuant to paragraph 2.17 of the Direction, other matters, although not primary considerations may be relevant. They should be taken into account, but given less individual weight than the primary considerations. The relevant considerations, in relation to this application, include:
* In a genuine marriage to an Australian citizen:
The relationship was established on 18 November 1999. At that time visa applicant was not a character concern non-citizen. Refugee application was prepared and lodged by the unscrupulous migration agent by 02 December 1999. Defacto relationship began on 04 December 1999. Review applicant got to know of the problem after the RRT decision handed down on 13/04/2000. Before that all the review applicant and visa applicant knew is that visa applicant can work and live in Australia.
We are enclosing more co-habitation documents, which may prove that relationship is genuine. Review applicant visited Philippines for the purposes of gaining employment between 21/12/2000 and 04/02/2001. Further paid AUS$ 1000 after RRT decision and also sent money to her when she had to undergo an operation in Philippines.
* the degree of hardship which would be caused to the immediate family members lawfully resident in Australia.
There is 'disruption' in the relationship between the visa applicant and her husband. If the visa application is refused it will create either 'disruption' in the relationship between Visa Applicant and Review Applicant or Review Applicant's immediate family members in Australia will suffer if he lives in Philippines. Review applicant is the only full time employed member in the family and lives with his mother who will loose his support. Further review applicant already faced hardship, as he could not find an employment in Philippines in his recent visit. Life in the Philippines is very hard and no work opportunities as he is a simple store man. Further, he married her with the knowledge that she has permission to live and work in Australia. He was not aware that the visa applicant unscrupulous migration agent lodged a refugee application. They were so annoyed with the migration agent that the Spouse Visa application was prepared by them together and they did not seek further help from any one in the industry. Please refer to T18 (122)
* Any evidence of rehabilitation and any recent good conduct
Enquiry received by us from Ms. Dominga B. Aguindang which demonstrate visa applicant present good conduct in relation to Australian Immigration law.
Other International Obligation
Article 23 of the International Convention on Civil and Political Rights ("ICCPR"), clauses 1, 2 and 3 of which are quoted as follows:
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to founder the family should be recognised.
3. No marriage should be entered into without the free and full consent of the intending spouses.We refer to the fact that to refuse the application would amount to punishment to the Review Applicant who is entitled to have visa applicant with him as his wife. We put it, visa applicant may well have offended immigration law in secondary role, but the review Applicant did not, and to deny her presence to him as his wife would be unfair. The contention can be justified; the review Applicant did not know what visa applicant unscrupulous migration agent had done, and he married her with knowledge that she has live and work permission in Australia. We point to the fact that the marriage took place after 3 months of defacto relationship.
I now respectfully submit that the Tribunal may set aside the decision to refuse the visa. This affects her dreams, motivation in life, Visa and Review Applicants present and the future years. Please sympathetically consider.
(b) The Respondent's Statement of Facts Issues and Contentions reads as follows:
1. The Applicant was born on 17 December 1976 (Tp 4).
2. The Visa Applicant was born on 29 August 1977 (Tp 8).
3. On 17 November 1999, the Visa Applicant initially entered Australia on a visitor visa valid for 2 months (Tp 8).
4. On 22 December 1999, the Visa Applicant lodged a protection visa application (Tp 50).
5. On 17 January 2000, the validity of the Visa Applicant's 2 month visitors visa expires.
6. On 17 January 2000, the application for protection visa was rejected by a delegate of the Minister for Immigration and Multicultural Affairs (Tp 83).
7. On 10 February 2000, the Visa Applicant lodged an appeal of this decision with the Refugee Review Tribunal (the "RRT").
8. On 30 March 2000, the RRT affirmed the decision of the delegate of the Minister to refuse to grant the protection visa (Tp 89).
9. On 18 November 1999, the Visa Applicant first met the Applicant (Tp 134).
10. On 4 December 1999, the relationship between the Applicant and the Visa Applicant began (Tp 134).
11. The Applicant married the Visa Applicant on 18 March 2000 (Tp 128)
12. On 3 May 2000, the Visa Applicant departed Australia (Tp 8).
13. On 7 June 2000, the Applicant made an application for a spouse visa based on her marriage to the applicant (Tp 123).
14. On 29 June and 5 July 2000, the applicant was interviewed by Department of Immigration and Multicultural Affairs (the "Department") at the post in the Philippines (Tp 161 / 162).
15. On 19 September 2000, the applicant was interviewed further by Department of Immigration and Multicultural Affairs (the "Department") at the post in the Philippines (Tp 155).
16. On 21 September 2000, the applicant's application for the spouse visa was rejected by a delegate of the Minister (Tp 17 ).
CONTENTIONS
17. The factors to be considered in the exercise of the power in s.501 of the Act are set out in the Direction – Visa Refusal and Cancellation under section 501 – No. 17 made by the Minister pursuant to s.499 of the Act ("the policy"). The Respondent contends that the Tribunal is bound to apply the policy (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
18. The exercise of the discretion in s.501 involves a two-stage process:
(a)a consideration by the decision maker of whether or not the Applicant passes the Character Test; and
(b)if the Applicant does not pass the Character Test, a consideration by the decision maker of whether the discretion should nevertheless be exercised to grant a visa, taking into account primary and other considerations.
PART (a) – APPLICATION OF THE CHARACTER TEST
Character of the Visa Applicant19.The Respondent contends that the Visa Applicant does not pass the character test based on the following general conduct and conduct in contravention of the Migration Act 1958 by the Visa Applicant:
(a)Seeking to come to Australia on a visitors visa so that she could work while being aware that the conditions of such a visa meant that she was not allowed to work;
(b)lodging a Protection Visa application on the 22 December 1999 including false claims in her application; and
(c)lodging an application on 10 February 2000 in the Refugee Review Tribunal for review of the Department's decision to refuse her a Protection Visa and maintaining the false refugee claims that were before the Department of Immigration and Multicultural Affairs.
20.The policy indicates at paragraph 1.9 that the Tribunal should consider certain matters (where they are relevant to the facts of a particular case), and, where they are relevant, would, in the absence of countervailing factors, constitute a failure to pass the character test. The following matters listed in paragraph 1.9 are relevant in this case:
(i)Paragraph 1.9(a) of the policy, in the fourth dot point states "whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to ... involvement in activities such as ... breaches of immigration law ..."
(ii)Paragraph 1.9(b) of the policy states "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."
(iii)Paragraph 1.9(c) of the policy state "whether the non-citizen has ever made a false or misleading declaration on an approved form...about the non-citizens character or conduct or both."
21.The Respondent contends that the applicant has engaged in the conduct which would fall squarely within paragraphs 1.9 (a), (b) and (c), and as a result she does not pass the character test.
22.The sustained flouting of Australian law by the Visa Applicant outweighs any supportive character references and associated indicia of recent good conduct of the visa applicant, or any remorse shown by her for her actions over the preceding time period.
23.Taking the Visa Applicant's conduct as a whole, the Respondent contends that she does not pass the character test.
PART (b) – EXERCISING THE DISCRETION
24.If the Applicant does not pass the Character Test, the Tribunal nevertheless has a discretion to decide whether or not to allow the Visa Applicant to remain in Australia. In exercising that discretion, the Tribunal must have regard to a number of "primary" and "other" considerations as outlined in the policy.
Primary Considerations
Protection of the Australian Community25.The respondent contends that, taking into account the three indicia under this heading, i.e. the seriousness of the Visa Applicant's conduct, the risk that the visa applicant will re-offend and the need to deter others from similar conduct, the protection of the Australian community weighs heavily against the discretion being exercised in favour of the Visa Applicant.
Seriousness of the conduct
26.Paragraph 2.6(c) states that presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia is considered by the government to be very serious. The seriousness of the Visa Applicant's conduct is considered under the heading of the "Protection of the Australian community" and is a primary consideration. Having regard to the policy, the Respondent contends that the Visa Applicant's conduct in circumventing Australia's Immigration laws is very serious.
27.The Tribunal in the past has treated immigration malpractice as very serious (see for example Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148).
The risk of recidivism
28.The Visa Applicant has shown a disregard for Australian laws and general dishonesty in order to attempt to obtain advantages for herself, most notably staying and working longer in Australia. The Respondent contends that this conduct would indicate that there is a risk the Visa Applicant may engage in deceptive conduct if she is allowed to enter Australia.
General deterrence
29.The refusal of the visa to the Visa Applicant will send a clear message to others that conduct similar to the Visa Applicant's is not acceptable to the Australian community and non-citizens can expect to be refused entry if they engage in similar conduct (Paragraph 2.11 of the policy). In this regard see Msumba and Department of Immigration and Multicultural Affairs (McMahon DP, 8 February 2000, unreported at paragraph 39).
Expectations of the Australian community
30.The Applicant has provided fraudulent and misleading information to the department and to the RRT regarding her alleged refugee status. The Respondent submits that in light of such conduct, the Australian community would expect that she would not be granted a visa. The Australian community regards such offences as serious as evidenced in the penalties imposed on these types of offences by s234 of the Act (imprisonment for 10 years or 10,000 penalty units, or both). The Respondent contends that the expectations of the Australian community weigh against allowing the applicant to enter and remain in Australia.
Best Interests of the Child
31. The Visa Applicant and Applicant do not have any children.
Other Considerations
32.There are factors in this case which are in favour of the Tribunal exercising its discretion to allow the Visa Applicant to enter and remain in Australia, despite the finding that the Visa Applicant does not pass the character test. These include the fact that the applicant is in a genuine relationship with an Australian Citizen. This is a secondary consideration. Hardship to the applicant and the Visa Applicant are also secondary considerations weighing in favour of the exercise of the discretion.
33.Alternatively, the visa applicant's parents, brothers and sisters remain resident in the Philippines as does her extended family. There is no impediment to the applicant residing in Philippines with his wife and her family.
34.As a result of these considerations, the Respondent contends that the primary considerations outweigh the secondary considerations of hardship to the visa applicant and the applicant.
CONCLUSION.
character test as a result of her past conduct. The primary considerations of the protection and expectations of the Australian Community outweigh the hardship to the Applicant and the Visa applicant such that the discretion to allow the Visa Applicant to enter and remain in Australia, despite the finding that she does not pass the character test, should not be exercised in her favour.
(c) T20 (page 151) is a letter by the Visa Applicant dated 10 July 2000 to DIMA; that letter was sometimes referred to during the hearing as the "apology letter" and reads as follows:
Dear Mrs. Alegro,
File Number: 2000/098558/309
Pursuant to your letter dated June 29, 2000. I have submitted earlier my clearance from the Australian Federal Police report, National Bureau of Investigation (NBI), police clearance and Barangay clearance, it can be shown that I have no criminal record in the Philippines and in Australia.
I may have committed something wrong in Australia with regards with my refugee status. A certain friend whom I just met at circular quay (Australia) told me that if I go for protection visa it is far easier and faster for me to work legally and stay to have time for me and my fiancé (who is my spouse today) to arrange our marriage. I admit I had applied for protection visa but the information which was submitted to the Department of Immigration and Multicultural Affairs Office were constructed by. my solicitor. Regarding my travel in Australia, I stayed there from November 18 to February 18, 2000 consuming my tourist visa and the succeeding months until May 2, I used my protection visa. For this I sincerely apologize.
Rest be assured that my real personality is that I am well-bred. I came from a descent family where I was taught all of the good manners and right conduct. I took my education in the public as well as in private non-sectarian and sectarian schools. During my short-working stay in Australia, I did pay my due taxes.
The bottom line here is that our family must be together. I love my husband very much and we want to build and start a happy family of our own soon in a place where we can all be together. A happy family that consist of the children, the mother and the father. A family that can be together. A mother and father giving full support to their children raising them ,watching them grow and giving them a bright future. That is, if I will be allowed to stay with my husband. I respect my husband as the head of the family so wherever he lives the rest of the family must also stay with him. I can't force him to stay here in Philippines knowing the fact that he has a permanent and good job in Australia. Once again, please allow us to stay and live forever in a country we now dearly love.
Respectfully yours
[signature of Visa Applicant]
(d) T24 (pages 159-160) relate to one of two interviews of the Visa Applicant by DIMA in Manila; clause 13 relates to character issues and it reads as follows:
PA in office for IV with me re character issues.
Re her VV, PA applied for the visitor visa specifically for the purpose of looking for work in AA. Save she knew this was wrong. She has no friends and no family in AA. Travelled using correct name and DOB.
PA paid 150,000 pesos to agent to organise plane ticket and visitor visa (said she already had the ppt). Why pay so much? Said she didn't know how to apply herself so paid agent.
Once in AA applied for PV again just so she could work (to "work lawfully"). She succeeded in obtaining a job two months after she arrived (in Feb). I asked her is she knew what a protection visa application was. She said it was as a "refugee". I said if she knew this at the time – said yes she did. She was sitting on a bench at Circular Quay when a man sat beside her, his name was Jerry (a Filipino man). He told her about "refuge "visas" and she said she was interested as she wanted to get a "wrong permit". This was not a pre-arranged meeting – the man just met her there. Jerry gave her a solicitor's name. She went to the solicitor by herself and asked him to lodge a PV application for her. I asked why she did this – PA said she did it to be able to "work lawfully". I asked PA if she thought she was a "refugee" – she said "no sir". I asked what story solicitor put in her application – she said she didn't exactly know because the solicitor made up the information. She said he told her he put that she was "a supporter of Estrada" but didn't remember the details of what he put. The solicitor said he put that she "had to leave the Philippines", "or something like that". I asked PA if any of this was true – she said it was not true. Did PA sign the application herself? Yes. I asked why she signed it if it was not true – she said because it was the only thing she knew to be able to get a "working permit". Paid the solicitor $400. She was asked to attend IV with DIMA but didn't go because she knew her story was not true anyway.
PA found out the PV application was refused. She said she asked the solicitor to apply for review for her. I asked why – PA said because she did not get to work for too long when her [refusal] decision came, so she applied again so she could keep working. PA stated she was asked to attend IV with the RRT but again chose not to because she knew her story was not true. When PA got the refusal letter from the RRT she decided to go home to RP.
The Visa Applicant gave evidence by telephone link to the Philippines. Notwithstanding that she appeared to be reasonably fluent in English (judging by some of her answers in English), the Visa Applicant was assisted by an interpreter in the Tagalog language. In respect of her evidence:
(a) She was educated in the Philippines; after attending primary and high school she trained and qualified as a mid-wife.
(b) In 1999 she applied for and obtained a visitor's visa entitling her to visit Australia. She was at that time 22 years old, and was running her own clothing shop (which had been given to her by her parents in the Philippines). She said that she came to Australia in order to work. When asked why this was so, in view of the fact that she owned a shop in the Philippines, she said that she wanted to work in Australia. She said also, that to find work as a mid-wife was difficult without a "backer".
This is a convenient juncture at which to note that Dr Garg contended that in applying for a visitor's visa, the Visa Applicant was involved in a "secondary" manner on the basis that the travel agent concerned (Swire Travel Philippines, Inc) was the primary applicant. He contended also that the Visa Applicant was not required to attend an interview in the Philippines in respect of her application. I think that Dr Garg intended to imply that the Visa Applicant should have been counselled as to her precise status as a visitor and, in particular, that would not be able to work in Australia. That contention was, in my view, without foundation. The Visa Applicant applied for a visitor's visa because that was the only visa available to her. Her subsequent behaviour indicated that she knew that she would not be able, as a visitor, to work in Australia.
(c) Very soon after her arrival in November 1999, two significant things happened. In the first instance, she met the Applicant on the day after her arrival having been introduced to him by the Applicant's sister Cherry. In the second place, while seated on a bench at Circular Quay (Sydney) she met Jerry (also a Filipino) who referred her to a Mr Chris Muthu ("Mr Muthu"), who is a migration agent.
(d) The Visa Applicant's evidence as to how she came to make a protection visa application on the grounds that she was a refugee was, in some respects, contradictory. I set out in this context two relevant extracts from the T Documents; T7 (page 61) sets out the basis on which the Visa Applicant made an application for a protection visa and reads as follows:I hereby state the following circumstances which induced me to come to Australia.
Basically I belong to the opposition political parties of Philippines.
I was formerly a member of the political party [LAMP] of which the president is the present President Mr. Joseph Estrada.
We supported him fully when he stood for elections.
He has given false promises to the innocent people of the country.
When we asked the government to fulfil the promises it has given to the people during the Election period the members of the ruling part never responded to our demands.
It was rather embarrassing to face the constituents when they inquire about their rights and privileges.
We kept on pressurising the government to do what they have promised. At last the ruling party asked us to quit the party or to stop demanding to fulfil the promises.
Then we decided to crossover. But as we did not want to be labelled as a member of any political party we remained independent and support the opposition parties in their enterprise in criticising the ruling party.
This gave the opposition parties a great strength. They were a sort of revived by our pledge to support them.
They started campaigning again and we were invited to make speeches on their stages.
We also took this opportunity and took maximum advantage of it.
Our speeches were given wide publicity over private owned television and radio.
The Government first seemed to listen to our protests. But later on targeted us by stating that we have conspired against the government. But we came out publicly and told the nation that we have never conspired against the government but only tried to criticise it constructively.
But they kept on slinging mud on us stating that we have supported them with a view to get a higher position in the government, but when they did not agree with them we started criticising them.
Later on we were threatened by the politicos of the present government that we would have to suffer for what we have done.
Then after some time they again started their allegation stating that they have come to know about a conspiracy to oust the president and started arresting us.
(e) T14 (pages 92 – 95 inclusive) contain the claims and evidence before and also the findings and reasons by the RRT; they read as follows:
CLAIMS AND EVIDENCE
On 8 March 2000 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 13 April 2000. On 24 March 2000 the applicant advised the Tribunal in writing that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision "on the papers". This matter has therefore been determined on the evidence available to the Tribunal: the protection visa application and her application for review. No further material has been provided in support of the application for review.
The applicant is a twenty-two year old woman from Buguias on the southern Philippines island of Mindanao. She describes her ethnicity as Icorot, her religion as Pentecostal and states that he owned a dry goods business in the Philippines. She travelled to Australia with a passport which shows that it was issued on 27 May 1999.
The applicant claims that she belongs to opposition political parties in the Philippines. She states that she was formerly a member of the political party LAAMP, headed by the current President Estrada. She claims that while she supported his election, he made false promises and his government has not responded to calls to implement the policy commitments made during the campaign. She claims that it has been embarrassing to face constituents. The applicant claims that, finally, Estrada's party asked her and others to stop demanding that promises be fulfilled or leave the party.
Then, the applicant and others decided to "crossover": they remain independent but support opposition parties to criticise the ruling party and have given the opposition great strength. She claims that the opposition parties began to campaign again and that those who had "crossed over" were invited to give speeches at their functions which they did. The speeches were widely reported in the media.
The applicant claims that the government at first appeared to listen but later targeted them saying that they had conspired against the government. The applicant's group denied this but the government continued to criticise them and to allege that they had sought high positions in the government. She claims that government political officials said that they would have to suffer for what they had done. As well, they began to allege that there was a conspiracy to oust Estrada and started arresting people affiliated with the applicant's group.FINDINGS AND REASONS
There mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
The applicant has provided no additional information about the opposition parties she associated with after becoming disillusioned with the current government nor about the specific matters which she was concerned had not been implemented by the government. 'The Constitution of the Philippines provides citizens with the right to change their government peacefully and citizens exercise this right through periodic elections which are largely free and fair and held on the basis of universal suffrage. The party of President Estrada continued to hold large majorities in both the House of Representatives and the Senate'. As well, the Constitution provides for freedom of speech and freedom of peaceful assembly and association and these rights are generally respected by the government (United States Department of State 1999 country report on human rights practices: The Philippines Washington DC, February 2000, Sections 2(a), (b) and (3). The activities with which the applicant claims to have been involved seem to me to be not more than regular political activity common in democratic countries and the information available to me about conditions in the Philippines indicates that such activity is well tolerated.
The applicant has claimed that the government began arresting her associates because of an alleged conspiracy to oust the President. I have been unable to ask her at a hearing about who was arrested, when and in what circumstances, to test the truthfulness of these claims with her or to find out what led her to leave the country and how she was able to do so. The United States Department of State has reported that there were 48 politically motivated arrests during the period from mid-1998 to mid-1999 although the government denies that there are any political detainees. Most of the government's efforts against opposition forces have been in respect of communist and Muslim extremists. Detainees have the right to a judicial review of the legality of their detention and, except for offences punishable by a life sentence or death (when evidence of guilt is strong), the right to bail. Authorities are required to file charges within 12 to 36 hours of arrests made without warrants, depending on the seriousness of the crime for which the arrest was made (1999 country report on human rights practices: The Philippines Washington DC, February 2000, cited above, Section 1 (d). The applicant has not stated what she fears might follow her return but it would appear that she fears she could be arrested because of her suspected involvement in the alleged conspiracy against President Estrada. The limited evidence which she has provided in support of her claim for recognition as a refugee and which is before me does not indicate that there is a real chance that such an event could occur: the character of what she claims to have done does not seem to me to be of a kind where she could face persecution because of her political opinion.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s. 36(2) of the Act for the protection visa.
(f) It is altogether clear, and indeed was admitted by the Visa Applicant on a number of occasions that she had no political past at all in the Philippines, and that her only political view was that she was against Mr Estrada. She said that she told Mr Muthu that this was so and that, at or about the same time, he completed her protection visa application and also an application to the RRT, and in consideration of which she paid him one composite fee.
(g) In her evidence before the Tribunal, the Visa Applicant admitted in the clearest possible terms that she was not, and knew that she was not, and never had been, a refugee and that she made the protection visa application in order to be able to stay in Australia and also in order to work in Australia. She knew that in order to work she would need a visa, and had become aware that a bridging visa would entitle her to work, and would be granted, when she applied for a protection visa.
(h) Dr Garg sought, in effect, to blame the making of the false protection visa application on Mr Muthu; see in particular the Applicant's Statement of Facts Issues and Contentions under the heading "Refugee Visa" referred to at paragraph 2(a) of these Reasons above. While he accepted that the Visa Applicant was at fault, he sought to attribute the primary blame to Mr Muthu. The Visa Applicant, however, in her evidence admitted firstly that she knew she was not a refugee and, secondly, that she made her application purely to stay and work in Australia. Moreover, her statements at the interview (referred to in paragraph 2(d) of these Reasons above) indicate in clear terms that she knew perfectly well that this was so; that evidence coupled with the apology letter referred to in paragraph 2(c) of these Reasons, indicates that there was much more than simply the passive signature of blank forms which were completed by Mr Muthu who filled in what he pleased. That is not to say that Mr Muthu was not complicit. It may well be that he was, but he was not called to give evidence and it would be unfair to make findings against him without hearing from him.
The Tribunal notes in particular, that the Visa Applicant said in her evidence that she did not, when invited to do so, attend interviews, either at DIMA or the RRT, because she knew that her application was false.
(j) It is conceivable, but not likely, that Mr Muthu brought the application before the RRT without specific authority to do so. It is to be noted that the Visa Applicant signed a specific authority (T11, page 80) in respect of the application to the RRT.
(k) From February 2000 onwards, when she held a bridging visa entitling her to work, the Visa Applicant worked as an assistant nurse in a hospital. However, the RRT decision went against her and she then, in May 2000, returned to the Philippines.
(l) The Visa Applicant said that she did not tell the Applicant the precise nature and extent of her predicament until she had to, which arose when the RRT decision issued and she had to leave Australia. The Tribunal notes that it has some doubts as to whether the Applicant was as unaware of her predicament as he sought to contend. In the first instance, his brother Franklin was against the relationship at an early stage because he (Franklin) thought that the Visa Applicant was using the Applicant in order to obtain residence in Australia. In the second place, the Applicant said that she told him in December 1999 that she had employed a solicitor who was obtaining all necessary approvals. By the time of her marriage in March 2000, the DIMA refusal had been issued; it is possible, but unlikely in the extreme that a woman in this predicament with an uncertain future as to her residence in Australia would not have told her husband what had occurred. The relationship between the Visa Applicant moved quickly from first meeting in November 1999 to marriage, a very few months later.
(m) It is unnecessary to go into great detail as to the Visa Applicant's evidence on all of these issues. Even if Mr Muthu was complicit in the making of the false protection visa application and the subsequent RRT appeal on the same false grounds, the Visa Applicant was aware of what was happening and must, and should, be held responsible. It follows then that it is likely on the balance of probabilities that the Visa Applicant was guilty of breaches of section 234 of the Migration Act 1958 ("the Act"); the maximum penalty provided is such that these breaches must be regarded as serious.
(n) The Respondent conceded that the Visa Applicant did not breach section 235 of the Act, in that she worked only when she had a visa entitling her to do so. The Tribunal accepts this concession while noting that it is at least arguable that to work on the strength of a bridging visa, obtained in consequence of a false protection visa application may perhaps, itself, be illegal. But it is unnecessary for the Tribunal to pursue this possibility further and the Tribunal does not take it into consideration.
(o) All of the Visa Applicant's family lives in the Philippines. It would appear that the Visa Applicant's family is not without means; her parents gave her the shop and ran it for her while she was in Australia. She is again, (after returning to the Philippines) running the clothing shop. When she needed money for a kidney stone operation the costs involved were provided in part by her parents and in part by her husband, the Applicant; this occurred after her return from the Philippines.
(a) The Applicant then gave evidence; he too is a Filipino having come to Australia in 1994. He was educated to HSC level in Australia and is currently a team leader in a factory, which makes clips and other items needed for use by railways. He is fluent in English, although at his request the services of the Tagalog interpreter were retained in case of need.
(b) The Applicant confirmed that he knew of his wife's immigration predicament only when the RRT decision issued. (The Tribunal notes that he was in the hearing room during the period when she gave evidence.) However, having regard to paragraph 3(l) of these Reasons above, he must have been aware at an early stage of the relationship that her residency situation was far from secure.
(c) The Applicant has visited his wife in the Philippines; that visit lasted for some 5 weeks. He said that having no experience he would find it difficult to obtain work in the Philippines; (this is questionable considering that he seems to hold a position of some responsibility in the factory at which he works). He said also, that although he is one of six siblings living in Australia, he is the only one in full-time employment, and that his mother (who is separated from his father, and who is still in the Philippines) relies on him for support. He was, naturally enough, reluctant to return to the Philippines. He thought that his wife's family would find it difficult to accept him if he were not in work. He was also reluctant to entertain the possibility of working in his wife's shop; he clearly sees it as his duty to be the breadwinner.
(d) Oddly enough there was no evidence by the Visa Applicant as to any illness, or as to her state of health, and notwithstanding the tender after she gave evidence, of the documents in Exhibit A11. The Applicant said that he contributed to the cost of the kidney stone operation and that the Visa Applicant's urinary function is not yet completely in order. He did not appear, however, to think that her medical condition is in any way serious.
(e) The Applicant was lead through evidence as to what might be the position in relation to future children; that evidence was altogether irrelevant at this time. He said that to go back to the Philippines to join his wife was feasible, although clearly not something that he wished to do.I am unable to attribute much weight to the character references. Those given by close relations of the Applicant speak of the genuineness of the marriage and their acceptance of the Visa Applicant as the wife of their brother or son, as the case may be. Those given by persons in the Philippines speak of her favourably. They all have one thing in common, namely an absence of any mention of her offences under the Act. Nor do they refer to her "enduring moral qualities" as referred to by the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (at 324) or the judgment of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (at 94).
(a) I now deal with the "Direction – Visa Refusal and Cancellation under section 501 No. 17" ("the Direction"). The Direction was made under section 499 of the Act and is in its terms expressed to be binding on all decision-makers, and including this Tribunal.
(b) It is convenient at this point to consider a recent judgment of the Federal Court in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. That judgment of Dowsett J was handed down on 4 May 2001. I became aware of it on the day prior to the hearing and arranged for my associate to phone the representatives of both parties, in order to give them notice that it might be relevant.
(c) Paragraphs 32 and 34 of the judgment in Aksu (supra) read as follows:32 In my view, the Minister was not bound by the Direction. He had the unfettered discretion conferred by s 501. If he treated himself as bound by it, then he erred. Given his adoption of the briefing paper as his reasons, it seems that he did so. However he was entitled to give such weight to the various factors, as he thought appropriate. Had he simply chosen to place more weight upon the so-called primary considerations than upon other matters, having regard to the facts of the case, there could have been no criticism of the decision. However it is clear that his decision as to the pre-eminence of the primary considerations was not based upon his assessment of this case. According to the briefing paper (and therefore according to his reasons) he has chosen to proceed upon the basis that a consideration which is not a primary consideration cannot be more important than a primary consideration simply because the policy says so.
….
34 The Minister's adoption of the briefing paper implies his adoption of the "binding" nature of the Direction as to weight. It was submitted that he should be taken to have known that he could depart from the Direction should he so choose and to be aware of his own powers. However if that were so, and if he had turned his mind to the matter, one would think that he would have perceived the need to make it clear in his reasons that he did not consider himself to be so bound. He would not then have adopted the briefing paper. It is an inescapable conclusion of his adoption of it that he proceeded in accordance with it. This must inevitably have included acceptance of the allegedly "binding" nature of the Direction. It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case. In my view this fettering of the discretion constituted an error of law for the purposes of par 476(1)(e) of the Act.
It would seem that in Aksu (supra) the Respondent Minister made the relevant decision personally and that he did so by reference to, and on the strength of a briefing paper; it would seem also that that briefing paper may not perhaps have been in all respects complete. It is clear though, that the Minister considered himself bound by the Direction, which was of course, a Direction of his own making. The Court however, came to the conclusion, as set out above, that the Direction was not binding on the Minister. This leaves open the question of whether, assuming the Direction is not binding on the Minister, it is binding in accordance with its terms on a delegate of the Minister or this Tribunal. It may be arguable that, if the Direction is not binding on the Minister, it is equally not binding on his delegate or on the Tribunal which, after all, stands (so to speak) in the shoes of the Minister.
(d) The opening portion of the judgment in Aksu (supra) sets out a list of cases considered by His Honour. It does not cite the judgment of the Full Federal Court in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, which would appear to indicate that the Tribunal is bound by the Direction. Rokobatini (supra) was, it is true, concerned with a different direction, although also one pursuant to section 499 of the Act, and at a time when section 499 was in a slightly different form. However, the Tribunal considers that it is authority for the proposition that where the Minister issues a direction under section 499 of the Act, that direction is binding on the Tribunal. Paragraphs 16 and 17 of Rokobatini (supra) (at 587) read as follows:
16 This submission raises similar, but not identical, issues as are involved in the primary judge's conclusion that the reasons of the tribunal were, in fact, in accordance with the direction. In view of our finding as to the error of law, it is unnecessary to pursue this latter argument to its conclusion. Underlying each is the question as to whether there is any relevant difference between applying the policy on the one hand, or the direction on the other, in the circumstances of this case. Even if the direction did not bind the tribunal at the time of its decision, it will certainly bind the tribunal if the case is returned to it.
17 The most obvious difference between the two is that the direction must be followed by reason of s 499 of the Act, whereas the policy might be taken into account in the manner discussed in various decisions of the court. While this is a radical difference, its significance is lessened, and perhaps eliminated, in the present case as it appears the tribunal may in truth have set out to give effect to the policy.
(e) Mr Loftus contended that the judgment in Aksu (supra) in relation to the finding that the Direction was binding on the Minister was obiter, in that it was not necessary for the purposes of His Honour's decision in that case. That argument appears to me, to be tenable. It is also arguable, that Aksu (supra) is distinguishable, in that it turns on a particular facts situation, and where the Minister made the relevant decision in reliance on an incomplete briefing paper.
(f) Assuming, though, that the finding of His Honour as to the binding nature of the Direction was not obiter, and assuming also that Aksu (supra) is not distinguishable, I consider that I should prefer the view of the Full Federal Court in Rokobatini (supra) and hold that the Direction is binding on this Tribunal.
(g) Even if the Direction is not binding, it unquestionably sets out the applicable policy. In paragraph 12 of his judgment in Aksu (supra), Dowsett J refers to the judgment of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 in the following terms:
12 Brennan J considered the matter in re-hearing the same matter, reported sub nom Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 - 641:
The Minister is free to exercise that power without adopting a policy as to the standards and values to which he will have regard in deciding particular cases. He is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, providing the policy is consistent with the statute. In Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, Cooke J (at 1298) held the effect of the relevant authorities to be:
"... that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision."
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity with the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute ... . Also, it would be inconsistent with (the Act) if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be) ... . The Minister must decide each of the cases ... on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of (the Act) must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion in tact while guiding the exercise of a power ... .
(h) It follows then, that at the very least I should treat the Direction as policy, and to which I should, having regard to the decision of Brennan J in Re Drake (No 2) (supra) have regard. I note also that Brennan J in the same case stated that consistency in decision-making is desirable.
As I understand the decision in Aksu (supra), Dowsett J considered that the Direction was invalid because it operated as a fetter on the Minister's discretion. Moreover, so His Honour found, it was couched in language which gave so high a degree of importance to the primary considerations, that it negated the effect of the non-primary considerations. At paragraph 23 His Honour said:
23 The qualification that "a primary consideration cannot be conclusive in itself" is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s.501
The validity of the Direction was considered by Sackville J in Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161. Dowsett J in referring to that judgment said, at paragraph 25 of Aksu (supra):
25 I turn now to the decision of Sackville J in Bustescu. At par 23 of his Honour's reasons, the relevant direction is set out. There are only two primary considerations, namely the expectations of the Australian community and the interests of children. However, it seems that the former encompasses both community protection and expectation of removal. In par 21 of the Direction (see par 25 of the judgment) other issues are considered, including hardship. It is indicated that the Government considers that such matters should be taken into account but given less weight than primary considerations. It seems that there is no provision to the effect that "no individual consideration can be more important than a primary consideration ...". At par 37 et seq, his Honour considered the validity of the Direction, saying:
As I have noted, the applicant contended that the Direction was invalid. That contention was founded on the proposition that the Direction, properly construed, prevents the decision-maker considering the merits of an individual case and was therefore inconsistent with s 200 of the Migration Act ... . According to Mr Game, the Direction has this effect because it provides that considerations other than primary considerations are to be "given less weight than the primary considerations" ... . It follows, so it was said, that where a decision-maker has to weigh a potential deportee's serious criminal record and the consequent expectation that he or she will be removed from Australia (a primary consideration) against hardship to that person (a non-primary consideration), the latter must yield to the former.
(j) Bustescu (supra) was considered by the Full Federal Court in Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698. I refer in this regard to paragraph 29 of the judgment in Lau (supra), reading as follows:
29. It is not necessary to set out parts of the General Direction. It makes clear that it is necessary to balance a number of important factors in reaching a decision as to deportation. A decision-maker is required to have a due regard to the important placed by the government on the two primary considerations nominated, but it states a balancing process should also be adopted, one which takes into account all relevant considerations. It is clear that it is open to a decision-maker to regard the primary considerations as not government the outcome in a particular case. It has been held that the Direction does not have the rigid operations as that for which the appellant contends: Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 (Sackville J). It is apparent that the Tribunal weighed factors affecting the appellant and his family, but that what tipped the balance was the serious nature of the crimes and the likelihood that he might re-offend.
(k) It must always be remembered that the Direction, in its terms states a consideration of the primary considerations alone does not suffice. The second, third and forth sentences of clause 2.2 of the Direction require a balancing process, in the following terms:
…. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the direction to refuse or to cancel a visa….
(l) Clause 2.17 of the Direction, moreover, makes it clear that the other considerations must be taken into account in the balancing process. Nor indeed, does clause 2.17 purport to set out an exhaustive list of other considerations. On the contrary, it states in its terms that "[t]hese other considerations may include".
(m) It follows then that it is conceivable that when weighing all the relevant facts, non-primary or other considerations may be sufficient, depending on the facts, to outweigh the primary considerations and this could occur whether or not any of the primary considerations could correctly be categorised as relevant.
(n) In summary then, the Direction, which in its terms is directed at the Minister's delegates and this Tribunal, does no more or less than require the latter to weigh all of the various considerations, and to come to a decision on the balance of those considerations. I do not think that the fact that some of them are said to be primary requires an interpretation that they are all important, since if this were so, the others would be otiose.
(o) It is then my view that the Direction does bind this Tribunal and, even if it does not, it should be considered as a clear statement of applicable policy.
(a) Dr Garg submitted that Exhibit A2 is evidence of recent good behaviour in the relevant sense for the purpose of the character test contained in part 1 of the Direction. The Tribunal considers, however, that the fact that the maker of that statement was deterred from illegal behaviour because of what happened to the Visa Applicant cannot possibly be construed in this light.
(References to clause numbers in this paragraph 7 and paragraph 8 of these Reasons should be construed as references to clauses in the Direction.)
(b) I accept that the Visa Applicant's conduct falls within both of clauses 1.9(a) and 1.9(b) of the Direction. Mr Loftus conceded that clause 1.9(c) was inapplicable. Given that there is no real evidence of probative value before me of recent good behaviour in the immigration sense, I must find that the Visa Application fails the character test.
(a) This brings me to a consideration of part 2 of the Direction.
(b) Clause 2.3 provides that there are 3 primary considerations as follows:(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
Clause 2.3(c) is not relevant in this case.
(c) Clause 2.3(a) must be considered in conjunction with clause 2.5. Clause 2.5 provides as follows:
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).
(d) I do not consider, as I indicated during the hearing that recidivism is a factor which needs to be considered. If granted a visa, the Visa Applicant would have no need to repeat her conduct in breach of the Act.
(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).
(f) As to deterrence Dr Garg contended that there is no evidence as to whether refusals of visas do, or do not deter conduct of this nature. As I have said on previous occasions, it is unlikely in the nature of things that empirical evidence would be available as to the extent to which this is so. But certainly, the grant of a visa in these circumstances would send entirely the wrong message. I refer in this context to paragraph 84 of the decision of Deputy President Chappell in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 which reads (in part) as follows:
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.
I refer also to paragraph 47 of the decision of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, which reads as follows:
47. The Applicant in his evidence spoke of others obtaining false passports in South Africa and travelling to countries using the false documentation. He spoke of people to his knowledge living in Australia by virtue of the use of false identity material. These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.
(g) As to the expectations of the Australian community, it is of course trite to say that the Australian community expects non-citizens to obey its migration law. I refer in this regard to Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554 (paragraph 27), Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790 (paragraphs 44 and 45) and Re Santos and Minister for Immigration and Multicultural Affairs [2000] AATA 567 (paragraph 71).
(h) As to clause 2.17, I agree that to require the Applicant to return to the Philippines after he came to this country from the Philippines would cause hardship to him. It would also cause hardship to his own immediate family and in particular, his mother, although it could be expected that she would receive support from the other five children in the family.
The Applicant is a Filipino who speaks the Tagalog language. He has a comparatively responsible position in the factory where he works; to say that he has no experience cannot be correct. No evidence was given as to the extent and nature of his efforts to obtain employment in the Philippines. It may not be easy, but it cannot be impossible. At the very least there is the Visa Applicant's shop (although there was no evidence before the Tribunal as to its ability to furnish two jobs rather than one). The Visa Applicant's health may perhaps be a factor, but she did not give any evidence at all as to the state of her health. As set out previously, the Applicant himself did not appear to consider her urinary function to be a problem or one which will not be cured.
If only for the sake of completeness, I should deal with a number of other arguments, of varying degrees of relevance, raised by Dr Garg, as follows:
(a) Dr Garg contended that Australia has convention obligations, which favour the grant of a visa to the Applicant. He referred in this context to Article 23 of the International Convention on Civil and Political Rights ("the Convention") and, in particular, to clauses 1, 2 and 3 of the Convention. That argument is untenable; I refer in this context to paragraph 7(b) of my decision in Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023, where I dealt with that argument as follows:Mr Turner referred at length to Article 23 of the International Covenant on Civil and Political Rights ("ICCPR"), clauses 1, 2 and 3 of which are quoted as follows:
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to founder the family should be recognised.
3. No marriage should be entered into without the free and full consent of the intending spouses.
Mr Cureton drew the attention of the Tribunal to the recent Federal Court judgment of Mathews J in Singh v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 313, and in which she stated (at 329):
. . . the ICCPR has not been incorporated into Australian domestic law. It was ratified by Australia on 13 November 1980 and is contained in a schedule to the Human Rights and Equal Opportunity Act 1986 (Cth). However, as the High Court confirmed in Dietrich v R (1992) 177 CLR 292; 109 ALR 385 it was not thereby incorporated into domestic law. As Mason CJ and McHugh J said (at CLR 305; ALR 391):
Ratification of the ICCPR as an executive act has no legal effect on domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. No such legislation has been passed. [footnotes omitted]
This position was upheld as recently as February of this year by the Full Court of this court: Minogue v Williams [2000] FCA 125.However, even if it were binding on me, the Tribunal does not consider that Article 23 can be interpreted so as to mean that an Australian citizen has an inviolable right to have his or her spouse live with him or her. That this cannot be so is demonstrated quite simply by posing the example of a spouse being sentenced to a term of imprisonment and, in consequence of which the other spouse is deprived of his or her company.
(b) Dr Garg said that the Visa Applicant's mistakes should be balanced against the Respondent's mistake. The Respondent's Statement of Facts and Contentions refers to the date of lodgment of the protection visa application as 22 December 1999. Dr Garg said that this was incorrect because the application was dated 2 December 1999. A consideration of the relevant document indicates that it was date stamped 22 December 1999, and the clause in question does refer to the date of lodgement. It cannot be said that there was an error, but even if there was, it was hardly prejudicial.
Dr Garg raised arguments as to what occurs (according to him) in other jurisdictions, and in particular the Migration Review Tribunal. Those arguments were of no relevance at all.
Dr Garg sought to contend that the Visa Applicant was only secondarily responsible for the false applications on the basis that Mr Muthu was primarily responsible. I consider, as set out previously, that it is likely that the false applications were a joint effort by Mr Muthu and the Visa Applicant and that there is no question of "secondary" responsibility, but in any event there have been numerous decisions which have held that in these circumstances the signatory of false documentation must take responsibility for its content. I refer in this context to Deputy President McMahon's comments in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 (at paragraph 30) which reads (in part) as follows:
… there is ample authority that if an agent is engaged and if a form is substantially signed in blank, then a visa applicant may not escape responsibility for what the agent has caused to be written on his or her behalf.
Dr Garg said that he had made searches, which had indicated to him that visas were not granted in cases described as "same situation cases" in the absence of a child whose interests required consideration. I have not myself attempted a search of this kind because I do not think it necessary to do so. This is a case where the hardship factor is relatively insignificant (compared for example with the fact situations in Re Peljha (supra) and Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956) and in no way sufficient to outweigh the primary considerations.
After the hearing had ended, Dr Garg emailed, at my request, the Applicant's Statement of Facts and Contentions. He also at that stage sought to make further submissions; these further submissions have not been considered by me.
In all the circumstances the discretion in question cannot be exercised in favour of the Visa Applicant and the decision under review is therefore affirmed.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: (signed M Ryan)
AssociateDate of Hearing 29 May 2001
Date of Decision 6 June 2001
Solicitor for the Applicant Dr Arun Garg
C/- Auslead International Pty Ltd
Solicitor for the Respondent Mr Paul Loftus
C/- Blake Dawson Waldron
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