Re Braceros and Minister for Immigration and Multicultural Affairs

DECISION AND REASONS FOR DECISION [2001] AATA 145

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/165

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Emma Jane Braceros
  Applicant
           And    Minister for Immigration & Multicultural Affairs
  Respondent

DECISION

Tribunal The Hon. RNJ Purvis, QC, Deputy President

Date 27 February 2001
Place Sydney

Decision The decision under review is affirmed.

[sgn]J Purvis , QC
Deputy President
CATCHWORDS
Immigration – Class BC Subclass 100 Spouse Migrant Visa – falsified passport and visa – worked illegally – overstayed visa – false identity – failure to disclose information relevant to application for protection visa – provision of false baptismal certificate; provision of false answers in application – whether recent good conduct or rehabilitation – character test – protection of the Australian Community – expectations of the Australian Community – other considerations
Migration Act 1958

REASONS FOR DECISION

the application

This is an application made by Emma Jane BRACEROS ("the Sponsor") seeking review of a decision of the Minister for Immigration and Multicultural Affairs ("the Respondent") under date 15 December 1999, refusing a Class BC Subclass 100 Spouse (Migrant) Visa in respect of her husband Salvador BERNABE ("the Visa Applicant").
In the reasons for the refusal decision the Delegate of the Respondent stated
"The Applicant travelled to Australia on a Visitor Visa on 24/10/1990, using a falsified passport and visa after having been refused a visitor visa previously. Whilst in Australia he worked illegally and overstayed his visa. He departed on 19/8/1994 under the supervision of Compliance Officers. Upon his return to the Philippines in August 1996, he lodged the current application for spouse Migration on the basis of his marriage to an Australian citizen. For the current spouse application the baptismal certificate he submitted has been assessed as a false document…I find that the level and duration of the fraudulent behaviour is not outweighed by the short duration since the last of his actions nor the compassionate grounds associated with his marriage to Ms Braceros"
The Applicant has for a lengthy period consistently dealt untruthfully with the Department in a system that requires and in fact depends on a person to be open and honest so that a proper assessment may be made.
In view of his past and present conduct and taking account of all of his circumstances, I do not elect to exercise my discretion to grant a visa to the Applicant in this case." (T1, P7)

In her application the Sponsor stated as the reason for seeking review of the decision of 15 December 1999:
"The DIMA made an error in not considering all the relevant facts in refusing my husbands application for a Spouse Visa." (T1)

The hearing

At the hearing of this application the Sponsor was represented by Mr Edgar Aquino of F & M International Consulting Group and the Respondent by Miss Quayle, a departmental representative.
There was tendered in evidence the documents lodged by the Respondent pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 marked T1 to T39, FS1 to FS18 and S1 together with the following written material which was identified as exhibits, namely:
Exhibit No     Description
A        Statutory Declaration of Ernesto Miranda, 4 May 2000
B        Affidavits of SJ Bernabe, Cefriano Fabre, Angelito Chaves, Shirly Daylo, Andy Rodriguez, and Rodrigo Grande
C        Statement of Evelyn Cano, 11 May 2000
D        To Whom It May Concern – Ramon Cruz 14 May 2000
E        To Whom It May Concern – J Roncal, 14 May 2000
F         Movement Details

Oral evidence was given by the Sponsor and the Visa Applicant upon which they were each cross-examined.
The factual situation

The Visa Applicant was born in the Philippines on 10 February 1952. In 1972 he married Maria Barnabe and of such marriage there are four children now aged approximately 27, 25, 23 and 21 years. They all reside in the Philippines.
In August 1989 the Visa Applicant made his first application for a visa to enter Australia. It was refused. He again applied for a visa in 1990, this time using an agent to whom he paid about A$4600 in exchange for which he was handed a passport, a transit visa and employment documents all in the assumed name of Archie Natividad, a purported seaman.
The person to whom the Visa Applicant paid the money was known to him as "someone who organises false travel documents for seamen "(T38/215). In his oral evidence at the hearing the Visa Applicant stated, that he was told by the person to whom he paid the money that for "60000 Pesos he could travel to Australia" and he was told to meet the person at the departure area of the airport where a passport and documents would be handed to him. He said that when he was at the airport "about 30 minutes before he left", he looked at the passport that had been handed to him and noted that it was not in his own name. There was no time he said for him to "back out" and "even if I told the police I was scared they might take revenge, they might kill me, so I continued with the travel". He acknowledged being told that there were a lot of jobs in Australia and that was "why I went there". During the course of his cross examination before the Tribunal the Visa Applicant was unable to recall details relating to his payment of the money, to whom it was paid or the place were it was paid. He acknowledged that he was "not real a seaman".
The Tribunal is satisfied on the basis of the evidence before it, that the Visa Applicant paid money with the intent that he would be provided with travel documents enabling him to enter Australia. It may well be that he was not initially aware of the means whereby the subterfuge would be put in place, or the manner by which he would be enabled to travel to Australia. However, he did intend as a consequence of the payment of the money to enter Australia other then by authorised means.
Arriving in Australia on 24 October 1990 under the false name of Natividad, the Visa Applicant then overstayed his visitor's visa not leaving Australia until 19 August 1994 when he was removed under supervised departure. His whereabouts had become known to the authorities as a result of "community information". During the time that he remained in Australia illegally he engaged in employment in Sydney as a jeweller, his wages being paid in cash, (FS13/291). He admitted during the course of his cross-examination that he knew at the time that he was not permitted to work "but I had to support myself". The Tribunal is satisfied that the Visa Applicant travelled to Australia with the express intent of overstaying his visa and obtaining employment in this country. The documentation (FS2/230-233) used in support of his application for the visa falsely described the Visa Applicant both as to name and occupation. The documents were supplied to him and used as part of the stratagem in aid of the Visa Applicant's breach of the migration law.
During an interview with departmental officers prior to his departure from Australia the Visa Applicant stated
"I am not a refugee".

When asked whether he had ever applied to have his original visa extended so that he could remain in Australia, he stated that he "intended to overstay". He also admitted that:

"Archie Natividad was an alias after being refused a visitor visa in real name several times. Obtained enc seaman's book & then used it to get a transit visa. This was obtained with the intent of over staying. A/n states he is not a sailor and has never been on a ship." (FS13/294)

On 9 March 1992 the Visa Applicant applied for a Protection Visa. In his application he failed to disclose that he had ten brothers and sisters then living in the Philippines. In relation to a question referable to his occupation and employment, no mention was made of his employment in Australia. Of greater significance in the context of the nature of that application, and the merits of the subject application, the Visa Applicant explained as the basis for his claim to refuge status:
"because of my personal involvement of political activities with the Liberal Party in Bulacan, which is the opposition of the mayoral Government".

He stated that he was then in fear that "I would be arrested and sent to jail" and that this would happen "due to the election campaign between the two parties is so heated, killing is very easy to occur". He detailed the pertinent circumstances as:

"I was a member of Liberal Party in Bulacan area. I joint them since 1986, at that time I was the bodygard (sic) of our leader mayor Legaspi. Our party was in power form sic) 19082 to 1989. 1988 our leader Mayor Legaspi lose the provincial election. Since then the opposition party is in power. Their leader Mr Blanco is the new mayor of Meycauayan Bulacon our party member were chased by the new government Especially our leader Mr Legaspi had to go to U.S. all our members were advise that situation and everyone had to make way to run away. As a formen (sic) bodyguard of our leader. I was quite well known in Bulacan. I therefore became one of most wanted person…The police came to my home looking for me they asked my family to take me to see them the next day It was in December 1989 after Mr Legaspi went the police come to my family many times ofter (sic) as our party member had lost our support from National government as Mr Legaspi had gone to US. Each time they come to my family (I was in hiding) they all questioned and interrogate my family. They beat my wife to try to make me coming out. They gave my family very hard time just for getting me."

During the course of his cross-examination, the Visa Applicant admitted that he had not been a bodyguard to the mayor and that the particulars contained in his application were "made by a friend who helped me, perhaps not true, maybe he is the one who made this". He admitted that he "did this so I could obtain a working visa not because I thought I was a refugee".
The Protection Visa application was refused, the Delegate on the date 16 December 1992 finding:
"I do not accept the Applicants contention that he, his family and other supporters of Mr Legaspi were harassed by the police for political reasons after his employer and political leader lost the mayoral election….I do not accept as being reasonable the claim that the visits from police to the applicants home were due merely to his political affiliations…I find it impossible to reconcile these inconsistencies and draw a negative inference regarding the credibility of the applicants claims…after careful consideration of all the available evidence I conclude that the applicant does not have a real chance of persecution should he return to the Philippines. His fear of persecution is therefore not well founded".
The Visa Applicant applied for review of the above decision by the Refugee Status Review Committee contending:
"I wish to review of the decision made on my application for Refugee Status in Australia.
First I wish to clarify (sic) the confusion in my application for a visa entering Australia. As you can see the name in the passport is not my real name. I applied for this passport and visa through a travel agency, which was located in Manila at that time, and many Filipinos went to this agency to get the passport and visa. The information in my application for a visa is complete not true (sic) and I had no idea about it until I read you letter (sic).
I have stated in my application that I was the bodyguard of Mayor Legaspi. I was a jeweller as well which was follow the family. Now I wish my case can be reconsidered and I can be given a chance to stay."
The Refugee Status Review Committee on 22 April 1993 recommended confirmation of the original refusal decision. In the course of his cross-examination before the Tribunal the Visa Applicant admitted that he was the one "who made up and wrote the above material including the responses to his having been the bodyguard", "this so that I could get a working permit".
The Respondent confirmed the refusal decision on 22 June 1993, not granting the Visa Applicant refugee status.
The Tribunal is satisfied that the Visa Applicant detailed false information in his Protection Visa application and endorsed the same in his application for review at all times seeking to mislead the Authorities. At no time did he in fact regard himself as a refugee nor did he at any relevant time consider his life to be at risk.
The Visa Applicant was notified by letter under the date 19 July 1993 at his last then known address of an intention to order his deportation but was not located until August 1994.
The Sponsor became aware of the migration status of the Visa Applicant sometime prior to his deportation. She said that when she first met him she was not aware of his status but when they began living together in 1993 he told her about it. He talked about his situation:
"He came here under different name and refugee status. I suggested he return to the Philippines and apply from there. At first he did not agree but then we started to put money together so he could return to the Philippines".

The Sponsor during her cross-examination, when questioned as to her knowledge of the Visa Applicants' status said that he told her:

"people lodge for refugee status when they are not refugees from the Philippines, a friend had advised him to lodge a refugee application in order to be able to stay here. He was not really a refugee".

The subsequent application for migration to Australia was signed by the Visa Applicant on the 28 May 1996 and by the Sponsor some time earlier on 13 September 1995. The Spouse Visa Application was lodged on the 5 August 1996. On the 10 August 1996 a baptismal certificate was provided to the Australian Migration Office in Manila referring to the Visa Applicant. It was false in a number of particulars and replaced by a further certificate in April 1999. The false certificate stated inter alia that the Visa Applicant had been baptised according to the rights of the Roman Catholic Church by a Reverend Father Roberto A. Galang on the 11 August 1952. The certificate purportedly was signed by a Reverend Father Reyes, assistant parish priest. In a letter written to the Australian Embassy at Manila by the actual parish priest it was stated:
"In response to your request regarding the genuiness of the baptismal certificate of Salvador J Bernabe I consider this not genuine for the following reasons:
First the title of this parish is not St Joseph, but St Isidore. There is no St Joseph parish even in the whole Diocese of Naval. Hence he could not have been baptised here.
Second this parish was only created in the year 1966. Mr Barnabe was baptised in the year 1952.
Third Salvador Barnabe is recorded in the book of Baptism number 98. This parish has only 4 book of Baptism to date.
Fourth, there has been no Fr Galling nor Fr Reyes who had been assigned to this parish from the beginning of this parish and even in the whole Diocese of Naval."

The further baptismal certificate provided by the Visa Applicant contained particulars that conflicted with those set fourth in the earlier certificate.

In his migration application of 28 May 1996 the Visa Applicant stated that he had not been known by any other names, that he had not previously been married and did not have any children. This information was incorrect. In the course of his cross-examination he stated that the reason why he did not mention his four children was that "I did not consider them mine any more, I had not seen them".
The Visa Applicant first met the Sponsor in July 1992 and began living with her in March 1993. She was then still married to a Mr Balneg and had living with her a son of a previous marriage, Denis Neville.
The Sponsor was born in the Philippines on 19 February 1951 and married her first husband, a Mr Neville on 22 October 1976 in which year he sponsored her application to migrate from the Philippines to Australia. She became an Australian citizen on 16 October 1978 and separated from her then husband in 1983. A decree for dissolution of her marriage to Mr Neville became absolute on 10 April 1989. Thereafter she began a relationship with a Mr Emerico Balneg, marrying him on 8 March 1992. Mr Balneg seemingly was then living in Australia illegally and in breach of the Migration Act 1958. The Sponsor was aware of this situation before her marriage to Mr Balneg. She had at one time lodged a Spouse Application for Mr Balneg's migration to Australia; this application was withdrawn after the relationship between them deteriorated. The Sponsor admitted that her marriage to Mr Balneg was in part in order to help him in his effort to migrate to Australia. Prior to her marriage two compliance officers had come to the house where they were living and had asked Mr Balneg to attend an Immigration Office interview. It was one month after the visit by the compliance officers that she and Mr Balneg married. The Sponsor separated from Mr Balneg the year following their marriage.
Mr Balneg had seemingly entered Australia using an assumed name and on a false passport.
By the time the Sponsor decided to live with the Visa Applicant she had separated from Mr Balneg, whom she divorced on 26 November 1995. She had travelled to the Philippines to be with the Visa Applicant in March 1995 returning to Australia to sponsor the application of the Visa Applicant for migration on 11 August 1995 (T10). In the application the Sponsor declared herself to be living in a de-facto spousal relationship with the Visa Applicant. The Sponsor again travelled to the Philippines in January 1996 marrying the Visa Applicant in that place on 20 February 1996. She returned to Australia a few days later, the present application being lodged in May of that year.

Relevant Legislation, regulation and direction

A subclass 100 Spouse (Migrant) Visa is not able to be granted unless an applicant can satisfy the relevant public interest criteria including item 4001 of Schedule 4 of the Migration Regulations which item requires the Minister to consider whether it is appropriate to exercise his discretion under Section 501 of the Migration Act 1958 to refuse to grant a visa.
Section 501 of the Migration Act 1958 ("the Act") provides
"The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section a person does not pass the "character test" if:
…
(c ) having regard for either or both of the following:
(I) the persons past and present criminal conduct;
(II) the persons past and present general conduct;
the person is not of good character; or
…
Otherwise the person passes the "character test"."
Item 4001 is a mandatory criterion for the grant of a subclass 100 Spouse Visa and inter alia requires the Minister to be satisfied the Applicant passes the character test. Ministerial Direction 17 relates to visa refusal and cancellation under Section 501 of the Act and is a Direction given pursuant to Section 499 of the Act providing guidance to decision makers in making decisions referable to such refusal or cancellation of a visa. Migration Series Instruction 254 also provides guidance to decision-makers.
So far as relevant to this application Paragraph 1.9 of the ministerial Direction provides that in determining whether a non-citizen is not of good character in the context of sub paragraph 501 (6)(c)(ii) decision makers should consider the following matters and in the absence of any countervailing factors could conclude that there has been a failure to pass the character test:
"(a) Whether the non-citizen has been involved in activities indicating contempt or disregard for the law on human rights. This could include but need not be limited to…
…
Involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white-collar" crime, fraud, breaches of immigration law or…
…
(b) whether the non-citizen has in connection in connection with the application for granting a visa or any kind of benefit provided a bogus document or made a false or misleading statement;
(c ) whether the non-citizen has ever made a false or misleading declaration on an approved form as defined by subsection 5 (1) of the Act about the non-citizens character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia…"

Paragraph 1.7 of the Ministerial Direction provides, that in reaching the conclusion that a non-citizen is not of good character decision makers must take into account all the relevant circumstances of a particular case including evidence of rehabilitation and recent good conduct.
If the Minister, his delegate or in the present instance the Tribunal is not satisfied that an applicant passes the character test then consideration is to be given to the discretionary relief available under Section 501 of the Act. Paragraph 2.1 of the Ministerial Direction provides that in exercising the discretion whether to refuse the application regard must be had to stipulated primary and other considerations. Paragraph 2.2 of the Direction further provides that a weighting system is to be used, whereby no individual consideration can be more important than a primary consideration, but a primary consideration can not be conclusive in itself in deciding whether to exercise the discretion to refuse a visa.
A primary consideration is protection of the Australian community, an aspect of which is the seriousness and nature of an applicant's conduct, as well as the deterrent effect on prospective visa applicants of a refusal to favourably exercise the discretion when fraud or deception is used in an endeavour to obtain a benefit.
Under paragraph 2.6 of the Ministerial Direction examples of offences which are considered by the Government to be very serious include:
"…(c) serious crimes against the Migration Act 1958(16), including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for…presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia."

Section 234(1) of the Act provides:

"A person shall not in connection with the entry, proposed entry or immigration clearance of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia;
(a) present or cause to be presented to an officer or a person exercising powers or functions under this Act a document which is forged or false;
(b) make or cause to be made to an officer or a person exercising powers or performing functions under this Act a statement that to the person's knowledge is false or misleading in a material particular.
…"

The penalty for an offence against Section 234 of the Act at the relevant time was imprisonment for two years.
Paragraph 2.8 of the Ministerial Direction provides that when exercising the discretion in the above context decision-makers must also take into account any relevant factors provided by the non-citizen as mitigating factors.

Another primary consideration is the expectations of the Australian Community. Paragraph 2.12 of the Direction provides:
"The Australian Community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached…this trust it may be appropriate to refuse the visa application. Visa refusal…may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa. Decision makers should have due regard to the Government's view in this respect".
Apart from the primary considerations, Paragraph 2.17 of the Ministerial Direction provides, that where relevant, other factors such as the following should be taken into account, however these factors should be given less individual weight than that given to the primary considerations:
(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b) genuine marriage to, or de facto or interdependent relationship with an Australian citizen…
(c) the degree of hardship which would be caused to family members lawfully resident in Australia (including Australian citizens); including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen's family, both in Australia and overseas;
…
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions of section 200/201 of the Act or the visa refusal and cancellation provisions at section 501."
It is noted that in assessing the compassionate claims of an Australian partner, decision makers are to consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
acts relied on as being in breach of migration legislation
It is apparent from the evidence placed before the Tribunal that the Visa Applicant has in general terms committed the following acts contrary to migration legislation:

Entering Australia on the basis of a false passport and transit visa;
Entering Australia under an assumed name;
Overstaying the time prescribed in the Transit Visa;
Obtaining and remaining in employment when illegally in Australia and when it was known by him to be against migration law;
Making false statements in support of a claim for refugee status;
Making a false claim for refugee status;
Providing a false baptismal certificate in support of a statement contained in a migration application; and
Providing false answers and false statements in a migration application questionnaire.

the character test

The aspects in which the Visa Applicant has disregarded or acted in breach of Australia's Immigration Law have been detailed earlier in these reasons. Amongst the more significant are the following. The Visa Applicant :

arrived in Australia on a false passport in an assumed name and on a transit visa valid for three days. His intention was to overstay his visa and obtain employment. He did seek other then by way of his refugee application to remain in the country legally;
admitted that the person to whom he paid money in exchange for the passport and visa as well as employment documents was known as someone who organised false travel documents for seamen;
worked illegally in Australia;
made application for refugee status alleging circumstances, which were untrue. He maintained the falsity of his application through the review process;
claimed falsely in his visa application material that he had not previously been married and made no mention of his children;
obtained and presented a false baptismal certificate with his application for a spouse visa; and
claimed forgetfulness or ignorance as to the identity of the person to whom he paid money and who obtained for him the false passport and employment documents.

Taking into account all of the circumstances relevant in this matter, including the hesitancy displayed by the Visa Applicant in answering questions put to him during the course of his cross examination as to the identity of the provider of the passport, the place where contact took place as well as the many occasions during his evidence when he claimed an inability to recall various events, the Tribunal is satisfied that he has not demonstrated recent good conduct or rehabilitation. The conduct of the Visa Applicant demonstrates a clear disregard for Australia's Immigration Laws and a willingness to deceive and make false statements in aid of obtaining a desired end. He does not pass the character test.
Protection of australian community
Seriousness and nature of conduct
It was submitted on behalf of the Respondent that by entering Australia on a false passport and visa, in deliberately making false statements in relation to his marital status, working illegally for cash in hand and tendering a false birth certificate in support of his Spouse Visa Application, the Visa Applicant committed offences for which he might be prosecuted pursuant to section 234 of the Act. It was further submitted that his conduct regarding immigration fraud represented a serious offence under the Act and a disregard of Australia's Immigration Laws which warrants the exercise of the discretion in favour of refusing his Spouse Visa Application. There are said to be no relevant mitigating factors.
The Tribunal is satisfied that the conduct of the Visa Applicant was as submitted on behalf of the Respondent. To enter Australia under the guise of a false passport, visa and employment documentation well knowing that the material was obtained as a result of payment of a relatively large sum of money, this for the purpose of remaining in Australia illegally, together with the obtaining of employment and being paid in cash, all represent acts constituting serious breaches of the law. The deceit and lack of truthfullness associated with his refugee application further evidences the seriousness of the conduct of the Visa Applicant.
The Tribunal accepts the relevance and weight warranted to be given to the submissions made on behalf of the Respondent.
likelihood conduct may be repeated
The Visa Applicants' conduct in relation to the passport, visa and employment credentials were all in aid of his entering Australia and there remaining. If a visa should be granted to him this conduct would not be repeated. However, the deceit practised by him in the past and the reflection this casts upon his character may well indicate a propensity on his part to breach the law in the future.
general deterrance
The Visa Applicant admitted during the course of his evidence and in interviews he had with officers of the Respondent that he was aware of the identity of the person to whom he paid money and the person who provided the false passport and visa and other documentation in the name of the person said to be a seamen. He became a participant in a stratagem adopted or put in place by persons unidentified in aid of assisting individuals to illegally enter Australia. He intended to breach the Act and Regulations put in place by the Australian authorities to protect this country. In the event of his visa application being refused, a general deterrence to prospective applicants who seek to falsely obtain benefits to which they are not otherwise entitled will be maintained. The Visa Applicant further admitted awareness as to the stratagem being used in order that persons might illegally obtain employment in Australia. A refusal of the visa may well act as a deterrence to this practice.
expectations of the australian community
The Tribunal on the whole of the evidence before it accepts the submission made on behalf of the Respondent, that the Australian community would expect a Visa Applicant who deliberately provided false information, gained entry by use of such information, overstayed a visa and worked illegally to have an Application to migrate to Australia refused. The Visa Applicant knowingly obtained a visa through false means and in his conduct as itemised earlier in these reasons showed a complete disregard for the laws of Australia. In this respect it would be appropriate to reject an application made to reside in Australia.
other considerations
The Tribunal is satisfied, as has already been indicated in these reasons, that the Visa Applicant does not satisfy the character test within the meaning of section 501 of the Act. The primary considerations relevant to the exercise of the discretion have also been considered.
The Tribunal is satisfied that the relationship between the Applicant and the Visa Applicant is a genuine relationship and recognises that in the event of the application being refused distress will result for both these people. However it is clear from the evidence that the Applicant was aware of the immigration status of the Visa Applicant prior to her travelling to the Philippines and there marrying him. She was also aware that it was necessary for him to make an application to migrate to Australia and that by reason of his previous conduct, the application may not be granted. She was aware of the fact that he had worked illegally in Australia.
The Visa Applicant has the four children from his previous marriage and an extensive family of relatives living in the Philippines. He has himself been living there since he returned from Australia. The Sponsor also has family in the Philippines and on the evidence travels to that country at least once a year and spends time there. The Sponsor has been married twice previously. She has children living in Australia. A 23-year old daughter is married, lives in Perth and has two children. The Sponsor sees her but only occasionally. She said that she did not want to return to the Philippines on a permanent basis having lived in Australia since 1976. She is one of eight children but the only one living in Australia. Six reside in the Philippines and one in the United States. She says that she is financially assisting her relatives who are in the Philippines. As has been mentioned above and as stated by the Visa Applicant in his evidence, the Sponsor "goes home yearly and lives with me".
The Visa Applicant is a jeweller by occupation and no doubt if his application should be granted would be able to obtain employment as such in Australia.
submissions and decision
It was submitted on behalf of the Visa Applicant that he had been "a victim of circumstances". It was recognised and accepted that his refugee application had not been true but blame was sought to be placed on "the conduct of the agent".
The Tribunal is not satisfied that the Visa Applicant was such a victim or that he can avoid responsibility for his false application for refugee status. Nor is the Tribunal satisfied that there was any confusion in the mind of the Visa Applicant, as was submitted on his behalf, during the course of his cross-examination. He, on a number of occasions claimed an inability to remember relevant details, leading the Tribunal to conclude that he was not prepared to be frank and truthful in the evidence that he gave. On his behalf it was said, that he would "keep trying to come to Australia, not use illegal acts, just use the law as it is". He is entitled to "use the law" but not to act contrary to it or endeavour to use it in an improper way. The Tribunal is not satisfied that the Visa Applicant accepts that what he did was wrong and was contrary to the law. This reflects adversely upon his character. The Tribunal is not satisfied that there has been a change in attitude of the Visa Applicant or in this sense that he has reformed. It is true to say that he has not come under the notice of the police since returning to the Philippines but it is apparent that in the context of the present application and interviews with authorities in Manila he has sought to avoid the consequences of his conduct. It is true to say that the effect of an adverse finding upon the Applicant would be distressing for her. However, she entered the marriage with full knowledge of the circumstances.
On behalf of the Respondent it is submitted that the Visa Applicant is an untruthful person. The Tribunal is inclined to the view that the Visa Applicant was not being truthful in his evidence in the aspects earlier mentioned. His alleged inability to remember is not accepted as being truthful. The Visa Applicant knew when he arrived in Australia that he was travelling on false documents. He knew that his refugee application was false. His sole purpose in coming to Australia was to obtain employment and to illegally remain here.
As has already been stated, the Tribunal finds the Visa Applicant to not be of good character and does not consider that the primary and other considerations relevant to the exercise of its discretion are such as to warrant it being exercised in his favour in.
Accordingly the decision under review is affirmed

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. RNJ Purvis, QC, Deputy Presiident
Signed:         .....................................................................................
  Associate
Dates of Hearing  13 and14 December 2000
Date of Decision  27 February 2001
Counsel for the Applicant        Mr Edgar Aquino
Counsel for the Respondent    Miss B. Quayle

[2001] AATA 145

27 February 2001

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Character Test

Immigration Fraud

False Documents

Deception

Rehabilitation