Re Dovey and Minister for Immigration and Multicultural Affairs

[2001] AATA 935

DECISION AND REASONS FOR DECISION [2001] AATA 935

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2001/381

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      WILLIAM DOVEY  
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Mr S P Estcourt QC., (Deputy President)          

Date9 November 2001

PlaceMelbourne

Decision      The decision under review is affirmed.             
  ..............................................
  Deputy President
CATCHWORDS
Immigration - Refusal of visa on character grounds - false and misleading conduct in dealing with immigration authorities - exercise of discretion - interests of family - decision to refuse affirmed.
Migration Act 1958 – s501

REASONS FOR DECISION

9 November 2001   Mr S P Estcourt QC., (Deputy President)   

1. This is an application to review a decision of the respondent of 14 September 2000 refusing the grant of a spouse visa to Cecilia Matias Dovey ("the visa applicant") on the ground that she was not of good character within the meaning of s501 of the Migration Act 1958 ("the Act").

2. The visa applicant married the applicant in Melbourne on 26 October 1998 whilst in Australia pursuant to a Subclass 816 Special (Permanent) Entry Visa granted on 30 May 1995 which visa was cancelled on 16 November 1998.

3. The visa applicant departed Australia on 2 December 1998 and on 27 June 2000 she lodged an application for a Class UF Subclass 309 Spouse (Provisional) Visa and a Class BC Subclass 100 (Migrant) Visa at the Australian Embassy in Manila.

4. The visa applicant has something of a chequered history with migration authorities in Australia, dating back to the time of the expiry of her first visa, a six month visitor visa issued around 24 September 1986.   She has endeavoured to explain much of that history on reliance upon the advice of others, including professional advice, and whilst that may to an extent be true, I find it  unnecessary to examine her explanations given the admissions she has made concerning her own direct involvement in the  provision of false and misleading information in connection with her application for a protection visa first made on 8 August 1991, and her  application for a permanent entry visa made on 14 April 1994.

5. On 14 September 2000 the visa applicant was interviewed by a delegate of the respondent in Manila and she admitted during the course of that interview that:

(a)she had signed her application for her permanent entry visa and her earlier application for a protection visa knowing that they contained false material as to her marital and educational status and her need for protection; and

(b)that she had obtained and lodged a false diploma in support of permanent entry visa application.

1. On 14 September 2000 the respondent's delegate refused the visa applicant's application for a spouse visa on the ground that she failed the character test under s501 of the Act, and refused to exercise his residual discretion under that section in favour of the visa applicant.

2. There can be no doubt in this case but that the visa applicant fails the character test. The provisions of false and misleading material in connection with a visa application is a crime, the seriousness of which can clearly be seen from the penalty provided by s234 of the Act, namely, 10 years imprisonment or a fine of $10,000 or both.

3. The only issue in this application is whether the residual discretion under s501 of the Act to nonetheless grant a visa to a person who has failed the character test should be exercised in favour of the visa applicant.

4. In connection with the exercise of that discretion the Tribunal is bound to consider a number of factors specified by the Minister's Direction No. 21, which is made under s499 of the Act and which provides guidance to decision-makers including the Tribunal.

5. The Direction requires the Tribunal to balance a number of "primary considerations" and a number of secondary or "other considerations".

6. The "primary considerations" are:

   (a)      the protection of the Australian community;
   (b)      the expectations of the Australian community; and
   (c)       the best interests of any child or children of the visa applicant.

7. The first of the primary considerations, namely the protection of the Australian community, under the Direction, comprises three aspects.    They are:

   (a)      the seriousness and nature of the conduct;
   (b)      the likelihood that the conduct may be repeated; and

   (c)the likelihood that the visa refusal would prevent like offences by other persons.

8. The "other considerations" set out under the Direction are:

   "When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.   It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.  These considerations may include:

   (a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

• 'Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

  "The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State."
  Article 17.1 provides that:
  "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation."

  (b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

• in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must 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;

  (c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

  (d)family composition of the non-citizen's family, both in Australia and overseas;

  (e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;

  (f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);

  (g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

  (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 at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501."

1. In the Tribunal's judgment in this application a consideration of the evidence and the submissions made on behalf of the applicant and the visa applicant leaves no room for any decision other than that the protection of the Australian community and the expectations of that community outweighs the relevant "other considerations".

2. This application does not involve the third of the primary considerations, there being no children of the relationship between the applicant and the visa applicant or otherwise, the best interests of whom would have been of importance.

3. As the Tribunal has already observed s234 of the Act makes it an offence, in connection with an application for a visa, to make a false or misleading statement and provides heavy penalties. Moreover the Government's view as set out in Direction No. 21 is that presenting false or misleading statements in connection with entry or stay in Australia is a "very serious" offence.

4. As to recidivism, it is unlikely that the visa applicant would repeat her conduct given that her application is now for a permanent visa, however the remaining aspect of the first primary consideration, namely general deterrence, is relevant as a refusal or entry to the visa applicant because of her breaches of Australian migration laws is likely to make others, learning of the outcome, less minded to do so.

5. As to the expectations of the Australian community, it must be trite to say that the community expects non-citizens to obey its migration laws and to be open and honest with migration officials in relation to visa applications.

6. As Deputy President McMahon said in Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR @ 155 -156:

   "The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia."

7. The Australian community would not expect that false claims of persecution and the provision of false and misleading statements and documents in support of a visa application would be rewarded nonetheless with the grant of a visa after the discovery of those falsehoods.

8. As to the "other considerations" under Direction No. 21, it is important to observe the personal and family circumstances of the applicant and the visa applicant.

9. The visa applicant's father is deceased, but her mother, now 80 years old and in poor health, lives in Australia and cares for and is cared for by, the applicant.

10. The visa applicant has eight living brothers and sisters, 6 of whom live in the Philippines and only one of whom lives in Australia and who does not communicate with the applicant or the visa applicant or her mother.

11. The applicant has lived with the visa applicant for over 10 years and the Tribunal does not doubt that their marriage is a genuine one.

12. The applicant told the Tribunal that he cannot do without the visa applicant, that he is under medication for depression and that his general health is suffering as a result of the couple's separation.

13. The Tribunal accepts that the refusal of the visa applicant's visa will cause her, the applicant and the visa applicant's mother considerable distress amounting to hardship, however it is also noted in assessing the applicant's compassionate claims that he would have been aware of the visa applicant's immigration status at the time they married given they commenced to live together in 1990, and the visa applicant had been advised of the respondent's intention to cancel her permanent entry visa less than 2 weeks before they married on 26 October 1998.

14. The Tribunal also accepts that other than in an immigration sense the visa applicant is a person who can be regarded of good character and that her recent conduct has been nothing but good.

15. In the final analysis however, the Tribunal is of the view that the hardship suffered by the applicant and the visa applicant as a result of their marriage being disrupted and the hardship to the visa applicant's mother do not in this case outweigh the primary considerations set out in Direction No. 21.

16. It follows, that the decision of the Tribunal is that the decision under review is affirmed.

    I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

    Signed:         .....................................................................................
      Personal Assistant

    Date/s of Hearing     24 October 2001
    Date of Decision  9 November 2001
    Representative for the Applicant   Mr William Dovey
    Solicitor for the Applicant          
    Counsel for the Respondent         Mr G Boyd
    Solicitor for the Respondent         Clayton Utz