Re Dumbrell and Department of Immigration and Multicultural Affairs - [2000] AATA 443

DECISION AND REASONS FOR DECISION [2000] AATA 443

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/147

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BRETT DUMBRELL
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date06 June 2000
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – failure to meet character test – fabrication of basis of refugee status application – disregard for immigration law
Migration Act 1958 – s 501
Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

This is an application to review a decision of a delegate refusing the grant of a spouse visa to Edna Patricia Dalilis under section 501 of the Migration Act 1958 because she did not pass the character test as defined in that section.
Ms Dalilis came to Australia on 23 February 1996 on a visitor visa to see relatives living in this country. Her visa was for a period of three months and precluded her from taking up employment in this country during that time. This restriction was ignored.
During her stay she met others in the expatriate Philippine community who told her that they could arrange for her to stay for a longer period. Through one of these friends, she was told of a person named Abel Miranda, who was employed by a firm of solicitors, Davidson James and Associates at 301 Castlereagh Street Sydney. At no time did she meet Mr Miranda face to face. She did, however, speak to him on the telephone from time to time when she received instructions as to the procedure she should follow. This was to apply for a protection visa and to claim refugee status. Ms Dalilis was born on 11 September 1968 in the Philippines and remains a citizen of that country.
Mr Miranda sent her appropriate documents to enable her to apply for a protection visa as a refugee and for an associated bridging visa which would give her the right to work until such time as her status was determined. She was told by Mr Miranda to fill in the personal details in the forms, sign them and return them to him with an agreed fee of $2,000. He was to fill in the remainder of the form.
The application for a protection visa contained a space of half a page under the question "Why did you leave that country?". The space was filled in to read:
"I have to leave my country because of my association and activities concerning the New People's Army Movement in our region. Since my school days at the university I was always interested in politics, especially when Mr Marcos was in power. I joined this movement because I believed in their political teachings and opinions and I could see the suffering of our people. When the new government of Mr Ramos announced the amnesty for people like me, many of our members surrendered and took advantage of it. However, rumours filtered out the military inflicted several forms of interrogation including injuries to the body in order to get more information from former NPA members. In our province, our members who surrendered were forced to name prominent and long active members including myself. When five of my colleagues were raided and arrested I knew that it's just a matter of time that I will be the next one. As soon as this happened, I left and came here."

As an answer to the question "What do you fear may happen to you if you go back to that country?" the following was inserted:
"I fear that if I go back, I will be arrested just like my colleagues and be harmed or charged."

The application was accompanied by a declaration signed by Ms Dalilis asserting that the information was correct in every detail. It also included the statement "I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled." There was an undertaking to inform the Department of any change of address and an acknowledgment that the provision of false or misleading information in the declaration was subject to penalties under the Migration Act 1958. I should add that Ms Dalilis gave evidence by telephone at the hearing and demonstrated a clear and fluent knowledge of English.
The application was dated 12 April 1996. At an interview with the delegate on 8 August 1996, she was again asked to confirm the completed form. She asserted that it was correct except that she was not a member of the NPA but worked in support of the organisation by providing information on police raids that she obtained while working as a radio announcer and reporter. Her application for a protection visa was refused. She then instructed Mr Miranda to lodge an appeal to the Refugee Review Tribunal. He told her that it would not be necessary for her to appear. Mr Miranda wrote to the Tribunal on her behalf and again relied on the information that was before the delegate. The Tribunal rejected the appeal and found that even on the facts put before it, Ms Dalilis had not shown that she was a person to whom Australia had protection obligations under the Refugees Convention, as amended by the Refugees Protocol.
Mr Miranda thereupon wrote to the Minister on 21 May 1997 asserting that his firm had been instructed by Ms Dalilis to write to him and ask him to intervene in her application for a protection visa. It was asserted that the Department had failed to consider the "humanitarian component". Mr Miranda added "we disagreed with this statement and we told our client that she was treated fairly throughout the process of determination. She disagreed with our opinion".
He then went on to assert as facts the material included in the original application for a protection visa. Referring to the amendment made at the interview, Mr Miranda wrote:
"Apparently, during the initial interview with the Minister's delegate, our client gave a conflicting evidence in relation to her involvement with the NPA. We questioned her in regard of this evidence. She replied that she was confused and afraid to tell the interviewer the true part of her involvement. Our client insisted that she fears returning to Philippines because of her prior involvement. She is certain that she would be arrested and harmed by the authorities."

The application was rejected by the Minister.
At the hearing before me, Ms Dalilis agreed that all the information given in the application was false. She had not been a member of, nor was she or associated with, the New People's Army. She had not joined the movement. She was not named to the military as a prominent and long-active member. None of her colleagues was raided and arrested. She did not fear being arrested or harmed or charged by the authorities if she returned.
When asked why she had not told the truth, she said that Mr Miranda had told her that this was the way to succeed and as she had paid him $2,000 she decided to go along with it. Furthermore, she wanted to stay in Australia and work here.
The decision of the Refugee Review Tribunal was given on 25 March 1997. The application to the Minister was made on 21 May and the Minister's reply was sent on 16 June 1998. About a month after the application to the Minister had been made, namely in mid-June 1997, she met the applicant. Mr Dumbrell told me that Ms Dalilis had been a singer in Dubai and Thailand but that this was not her main occupation. She was, however, performing at a club on the Gold Coast when he met her. At the time, Mr Dumbrell was living with his mother nearby in Miami.
Ms Dalilis gave him her phone number. Three weeks later they met again and a relationship began which was to endure for the remainder of 1997 and throughout 1998. At first, Mr Dumbrell did not ask Ms Dalilis about her immigration status. At the time, he was working as a contract computer programmer and moved between Sydney and the Gold Coast for six or eight weeks at a time. Ms Dalilis was living with her aunt in Brisbane. However, while they were together, particularly on the Gold Coast, they went out for almost a year before they decided to make the relationship permanent.
The Minister rejected the section 417 application on 16 June 1998. It was about this time that Ms Dalilis told Mr Dumbrell of her difficulties with the immigration authorities. She told him that she now had no option but to leave Australia. She had been obliged to surrender her passport which would be returned to her only when she produced an airline ticket proving that she was leaving under supervised departure. Accordingly, Mr Dumbrell knew that she was obliged to leave this country in August 1998. Ms Dalilis told me that she had told Mr Dumbrell that she might not be able to come back.
Nevertheless, Mr Dumbrell decided to propose marriage to Ms Dalilis in a romantic setting. She accepted his proposal. Mr Dumbrell's evidence was that he did not think that Ms Dalilis would have any real difficulty in returning to this country, although he knew that the false statements that she had made would be brought up. In particular, he said he never doubted the good character of his wife. He added that he would have married her in any event, even if he had thought that she might have had difficulty in returning to this country.
In fact, he added in cross examination that he proposed to Ms Dalilis because of the fact that she was leaving. Neither of them made enquiries as to how she could have stayed here on a prospective spouse visa application.
Accordingly, she left the country in August 1998. Mr Dumbrell continued to keep in touch with her and finally came to the Philippines where they married in Baguio City on 14 January 1999. The wedding was held in Ms Dalilis' house where there were around 70 guests at a ceremony officiated at by the mayor of Benguet, her home town. Although Mr Dumbrell has no recollection of discussing her immigration difficulties at that time, it must have been a topic of conversation. Her application for a spouse visa does not appear to have been dated but she was interviewed for the first time on 20 January 1999. The application must have been made, therefore, within days after the marriage. In her application (question 70) she was asked whether she had been excluded from or asked to leave any country (including Australia) to which she ticked the "No" box. This was not true. In her evidence, Ms Dalilis could give no explanation for this.
The first interview at the Embassy in Manila was principally for the purpose of establishing that there was a bona fide marriage. The interviewing officer was satisfied that there was a genuine commitment. However, in view of some information that came out during the course of the interview, the matter was referred to a second officer to investigate character aspects. Ms Dalilis was interviewed for a second time on 20 August 1999. She confirmed what she had told the first officer, namely that the substantial part of her protection visa application had been written by somebody else whom she believed to be Mr Miranda. She admitted that she had not told him what to put in, that she had paid him $2,000, and that she had sent the document to him knowing that he would complete the important grounds and would forward the application to the Department.
The application for the spouse visa was refused and it is this refusal which is now the subject of the present review.
There was no attempt by either Mr Dumbrell or Ms Dalilis to deny the deception attempt. However, Mr Dumbrell, who represented himself, made a number of submissions on behalf of himself and of his wife.
He turned first to the wording of subsection 501(6) and pointed out that the use of the conjunction "and" in paragraph (c) meant that the decision maker had to have regard to both the person's past and present general conduct. He asserted that a fair assessment had not been made of Ms Dalilis' character through selecting an "isolated incident" in her past or present and making that incident representative of the person's overall character.
That submission was addressed in relation to comparable language in Minister for Immigration and Ethnic Affairs v Baker 153 ALR 463 at 470 where the Court said:
"That leaves for consideration just what is meant by "general conduct" when, in the same context, this expression is used to distinguish conduct that is not "criminal conduct". In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading of "general conduct", is conduct in general. The root meaning conveyed by the adjective "general", as is made clear by the New Shorter Oxford English Dictionary (1993), is the idea of universality. In s 501(2), it expresses a contrast with the particularity inherent in the reference to "criminal conduct". We do not think there is any warrant for extracting, from the broad word "general", a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as the person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly."

Ms Dalilis engaged in deception not once or twice but on a number of occasions. She knew that facts would be inserted in the protection visa application not because they were true, but because they were intended to be believed and to persuade the delegate to grant her the visa. If she did not see the final version of the facts at that stage, she certainly saw them when she was interviewed by the delegate. She did not seek to correct these facts except in a minor respect. She had another opportunity of telling the truth when the matter went to the Refugee Review Tribunal and again when the Minister's discretion was invoked. On none of these occasions did she seek to expiate her deception. It is not true to say, therefore, that the delegate merely selected an isolated incident.
The applicant then submitted that in fact his wife had made no verbal or written statement which could be defined as "incorrect or false". The incorrect information was provided by Mr Miranda who was described by Mr Dumbrell as the "catalyst for providing this incorrect information". As Mr Miranda was the author of the misleading information, he believed that his wife should not bear responsibility.
This is a quite unacceptable submission. Ms Dalilis knew that deception was intended. Even if she did not know the details of the story to be told at first, she certainly knew the details at a later stage and took no steps to correct them.
Mr Dumbrell then said that sufficient credit had not been given to his wife and sufficient attention had not been paid to her present general conduct. Her unexplained assertion in the current application form, that she had not been required to leave Australia is, in my view, evidence of a continuing pattern of attempted deceit. The fact that she made admissions at the two interviews in Manila does nothing to add credit to an assessment of her present general conduct. Mr Dumbrell submitted that "in her recent present dealings with the Department she has demonstrated transparency in being open and honest to which these qualities must be applied to someone who is of good character". In this he is mistaken.
Mr Dumbrell relied on some passages of the judgement in Baker to support a submission that "bad character should not be forever assumed on the basis of one incident". Of course, there was not one incident of deceit. There were many. Mr Dumbrell points to the fact that the false statement was made over four years ago on 19 April 1996. To this I would say that it may have been made for the first time on that date, but it has been repeated a number of times and has been supplemented in the present application by yet another false statement.
Mr Dumbrell, relying on a passage in the judgement in Irving v Minister for Immigration Local Government and Ethnic Affairs 139 ALR 84, pointed to the fact that supplementing the absence of criminal convictions, there were now character references which he tendered in evidence. Mr and Mrs Mamaril, the relatives in Brisbane with whom she stayed, gave short references in which they described Ms Dalilis variously as "trustworthy, well mannered, helpful, polite … with a very pleasant nature … has a positive attitude and hard working nature… an overall fun loving nature… kind and trustworthy… caring nature and sincere attitude". None of these descriptions are of any assistance in determining whether Ms Dalilis has met the character test, which is a statutory criterion designed specifically for the purpose of, and with reference to, migration. A Philippines businessman who was previously the manager of a bank attested that:
"I honestly believe that she is in good moral character, industrious, god fearing, sincere and honest in her dealings with people… She possessed a good public relations and more adept in sales/marketing activities."

None of the persons who gave these references has apparently been informed of the nature of the dealings between Ms Dalilis and the Department. Their references do not assist, therefore, in determining whether she meets the character test.
Mr Dumbrell also referred to the well-known phrase used by Lee J in Irving that one should look to the "enduring moral qualities of a person". Irving, of course, was decided before the extensive amendments were made to the Act by Act Number 114 of 1998. The section no longer speaks of "good character" as such, but of a statutorily defined "character test" which is to be looked at in its interaction with the operation of the Migration Act. Ms Dalilis overstayed her visitor visa by a considerable period, went to dishonest lengths to prolong her stay and yet still blames Mr Miranda for her predicament. Her failure to accept personal responsibility is itself a reflection on her enduring moral qualities. Mr Dumbrell pointed out that his wife had contributed $93 to World Vision Australia and that she should be given credit for this charitable act. Compared with the other actions to which I have referred, such a donation would be insignificant as an element in considering Ms Dalilis' present general conduct.
Section 499 empowers the Minister to give a written direction concerning the performance of the functions of decision makers, including this Tribunal. In determining whether the character test has been passed, the Minister has directed that I should consider breaches of the immigration law and the making of an application for the grant of a visa of any kind based upon a bogus document, or the making of a false or misleading statement, as constituting a failure to pass the character test. On any view of the facts, therefore, Ms Dalilis must fail the subsection 501(6) test. She either knowingly provided, or was an accessory in the provision of, false information in her application for a protection visa. She knew when she lodged that application that she was wrongly applying for Australia's protection as a refugee. She did not take advantage of any of the occasions when she could have rectified the wrong statements and she did all this merely to extend her stay in Australia for as long as possible so that she could legally work under the provisions of a bridging visa associated with her application for a protection visa. This conduct demonstrates a blatant disregard for Australian immigration laws. It amounts to a failure to pass the character test.

There is still a residual discretion notwithstanding that failure. Refusal of the spouse visa will obviously cause distress both to Mr Dumbrell and to Ms Dalilis. This was evident and genuine during the course of the hearing. Mr Dumbrell faces a life of separation from his wife if he stays in Australia and an uncertain future if he moves to the Philippines. Mr Dumbrell asked in his submissions whether it was reasonable to expect him to travel overseas, to leave his immediate family and friends, and to live in a country in which he did not speak the native language and to embark upon an uncertain future in the area of his employment skills as a computer programmer. He asked in his submissions on discretion whether it was reasonable that he should be punished for an act to which he was not privy.
He may not have been privy to the acts of deception associated with the protection visa application. However, he certainly knew of them before he proposed marriage to Ms Dalilis in June 1998. He certainly knew when she left Australia in August 1998 that it was under compulsion and that she could well have difficulty in returning. He certainly knew of those difficulties when he went to the Philippines (his first journey outside Australia) in January 1999 for the purpose of marrying her. Mr Dumbrell may not have acted in the same way that other men in a similar situation would have acted. Nevertheless he is an adult, an intelligent and articulate man and one who must take responsibility for his own actions. Having determined to embark on a permanent relationship with full knowledge of the possible consequences, he cannot now be heard to seek the exercise of discretion in his favour on hardship grounds.
Mr Dumbrell complained of an excessive financial burden that is placed on him by supporting his wife. Although he did not give details, he said in his written submissions that he provided monies to support her in the Philippines. Ms Dalilis, however, offered no grounds upon which the discretion should be exercised benignly. She did not point to any particular hardship that she was suffering by being denied entry into Australia, except for the fact that she would like to come here and work in this country. In the meantime, she is studying Japanese in the Philippines with a view to taking up employment in the tourism and travel industry.
Neither party has been married before and there are no children whose interests are to be considered. There are no grounds that I can see which would warrant the exercise of the discretion in Mr Dumbrell's favour. For these reasons, the decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Date of Hearing  25 May 2000
Date of Decision  06 June 2000
Representative for the Applicant              Self-represented
Representative for the Respondent        Ms Bridget Quayle