Re Esguerra and Minister for Immigration and Multicultural Affairs

[2000] AATA 554

DECISION AND REASONS FOR DECISION [2000] AATA 554

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/148

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      JULIETA ESGUERRA      
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Mr B.J. McMahon (Deputy President)    

Date06 July 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 the character test – use of false identity – misleading immigration authorities – secondary consideration of hardship to the applicant does not outweigh primary considerations.
Migration Act 1958 – ss 499, 501.

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)                

1. This is an application to review a refusal of a spouse visa to Raymundo Esguerra, the husband of the above applicant. The visa was refused on the grounds that he did not pass the character test as defined in subsection 501(6) of the Migration Act 1958 in that having regard to either or both of his past and present general conduct, he was not of good character.

2. Mr Esguerra is a Philippine citizen. In October 1988, he obtained a false Philippine passport from an agent in that country. The passport was in the name of Ricardo Blanco and purported to identify the applicant as a person of that name with a fictitious date of birth which did not coincide with his true birth date. Endorsed on the passport was a label for a visa granting entry to Australia as a visitor. The passport was not issued by the Philippine Government and the visa was not issued by the Australian Government. The whole document was therefore a forgery. Mr Esguerra paid 30,000 pesos to acquire it.

3. Although he was later to say that he believed he needed a false passport in order to get out of the country because of his prior activities, he did not say this in the statement put forward in support of his spouse visa application. In that statement, he said that he acquired the passport so "that I could depart from the Philippines immediately without any problems and not have to endure the lengthy time-consuming process through the normal official channels".

4. Travelling on this document, he arrived in Australia on 7 November 1988 where, as he said, he was able to make friends and meet people, especially from the Philippine community who were "very kind to help me during the three months period of my stay". In his statement he added that "following the expiration of my three months visa I decided to stay in Australia".

5. Having made that decision, he then set about obtaining employment and a driver's licence, both under his correct name Raymundo Esguerra. He worked between 1988 and 1996 contrary to the terms of his false visa and without any right to be in the country.

6. After some 3 years, he formed a de facto relationship with Shirley Barcarse in 1991. This continued until she died in a car accident in September 1996. After that, he formed a close relationship with her cousin, then known as Julieta Haggith, who is now the present applicant. Although he had known Julieta since 1991 through her cousin, their relationship did not develop until after Shirley's death. The applicant was unhappily married to Roderick Haggith. That marriage was heading towards its ultimate demise as Julieta saw more and more of Raymundo. It was about this time that Mr Esguerra decided to legitimise his presence in Australia and to obtain legal permission to work.

7. Through the Philippine community he was introduced to a migration agent who advised him to lodge an application for a protection visa and to claim refugee status. The application was lodged on 26 September 1996. It was made in the name of Ricardo Blanco. Details of the forged passport were given as the relevant travel document. The answer to the question relating to his education details showed the dates at which he attended elementary school and high school. It also showed a period of attendance at the University of the Philippines between 1967 and 1971. In his application for a spouse visa, he did not claim to have had a university education. In his telephone evidence before me he admitted that the claim for tertiary education in the protection visa application was false. No explanation was given as to why such a claim would have been made. I can only assume that Mr Esguerra believed that it would assist his case.

8. Although he consulted a migration agent, Mr Esguerra insisted during his evidence that he completed the form himself in his own handwriting and that he alone was responsible for the material appearing in it.

9. In answer to various questions in the form relating to the reasons for claiming to be a refugee he said, among other things:

   "I left that country because my life is in danger, this is what happened. I used to be a member of a social group in the Philippines and I was active in their activities this came to the knowledge of the authorities of the Phil. Government and they suspected me as a suversive so I have to escape prosecution from them.
   …
   I fear that I might end up in jail or be killed by the military I might be kidnapped or tortured and my body parts cut into pieces and be sent to my friends to teach them a lesson not to do what I have done.

   …

   If I go back, the military authorities will harm or mistreat me, and also there is a possibility that the member of the social group might want to liquidate me to so that I wont be a source of any information.
   …
   I am of the belief that they will harm or mistreat me if I go back because they believe that I am getting secret information and relaying them to the particular social group. Also, they are afraid that if I live I will get some more members to join our group.
   …
   I don't think the authorities will be able to protect me if I go back because they are the people who I am running away from."

1. He has consistently maintained that these statements were true, although there are inherent inconsistencies between some of the statements he made in the application form and some of the statements he made elsewhere. Clearly his name, passport details and details of education were not true and Mr Esguerra agreed with this during the course of his evidence. In his application for a spouse visa, as I have pointed out, he did not make any mention of a pressing need to flee the Philippines to save his life. In his evidence, he also contradicted a statement appearing in the application. When I asked him the name of the social group referred to he nominated the New People's Army but then denied that he had been a member of it. He said "It was sort of like a member. I was a follower. I coordinated information concerning goings on in our town". He added that all these activities took place in the 1970s. The application for a protection visa was made some 20 years later.

2. This and the passage of time since he left in 1988 appear to have been the factors which influenced the delegate in refusing the application. He said:

   "Many things have happened in the Philippines since the applicant's departure from the country in 1988. First of all, the anti-subversion law was repealed in September 1992 (evidence 3), paving the way to the legalisation of most organisations formerly branded as subversive. In this regard, I assess that the applicant will not be persecuted on return on account of his claimed membership to an unspecified group.
   I also do not consider that the applicant will be suspected of recruiting members for the group. He has been away from the Philippines for more than eight years and he could easily prove that to the authorities.
   Having been absent for a long period of time will easily dispel any suspicion on the part of the members of that group that the applicant has been providing information to the authorities. I also find this fear as unfounded.
   In summary, as the applicant has been away from the Philippines since 1988 and a more democratic regime is currently in place, I consider the chance of him being persecuted on return as remote."

1. Mr Esguerra appealed to the Refugee Review Tribunal, still maintaining the false identity of Ricardo Blanco. That Tribunal examined his statements. Whilst it considered that some of them were inherently implausible, it did not reject the whole story as untrue. It did, however, reject claims made by the applicant at the hearing and characterised them as fabrications. The Tribunal said:

   "It is plausible that the Applicant passed on information in the course of his work in his province. However, nothing ever happened to him during those activities and he was able to obtain a passport and leave the country without any apparent difficulty, despite the claim that the authorities viewed him as a subversive.
   He mentioned for the first time at the hearing that he was being held responsible for the death of a military official in 1986. He also stated that his friends had told him in March 1996 that he was still being sought for that reason. However, neither of these two vital elements of his claims to need protection were included in his later refugee application. If, as he claims, he was perceived to be a subversive informer, it is inherently implausible that he could continue to live and work in the same places for two years after his action lead to the death of a military official, without being at least questioned by security agencies. Nor would he have been able to obtain exit documents and then leave the country. The Tribunal concludes that the claim regarding the death of the "goon" and continued interest in the Applicant were fabricated to shore up the claim to be a refugee.
   He also claims that he fled prosecution in 1988, in order to seek asylum in Australia, yet he did not made an application for protection for eight years. His explanation that he did not know he could made such an application is inadequate and he had ample time and opportunity after his arrival to make enquiries to help him realise his desire for protection. The fact that he failed to make a timely application supports the conclusion that he does not have a subjective fear of persecution and, even if he did, it would not be well-founded as there is not a real chance that it may be realised. The conclusion is strengthened by the long period of time that has passed since the applicant left the Philippines and by the political changes during that time.
   Submissions made by the Applicant's girlfriend in writing at the hearing are related to issues that do not effect his refugee status and therefore are outside the jurisdiction of the Tribunal.
   In considering the totality of the Applicant's claims and the evidence before it, the Tribunal concludes that he does not have a well-founded fear of persecution on account of political opinions ascribed to him for being a minor informer almost ten years ago. Nor does he have well-founded fears of persecution in regard to any other Convention ground. He is not a refugee and therefore is not a person to whom Australian has protection obligations and does not meet that criterion for the purposes of granting a protection visa."

1. At interviews in connection with his spouse visa application, Mr Esguerra continued to assert the truth of the matters alleged in his protection visa application, except for the factual errors to which I have referred. Although I was invited to draw certain inferences adverse to Mr Esguerra, I do not consider that the evidence put before me is sufficient to enable this to be done. The allegations made by Mr Esguerra were closely examined by the delegate and by the Refugee Review Tribunal, neither of which found that the application was frivolous or totally untrue. Mr Esguerra agreed in cross examination before me that he used the false name because he did not want "the Department to come and find me". He also agreed that "I would say anything to the Department even if it was not true if it would help me to stay in Australia". Neither of these statements assists in determining that a false application was made, except in relation to certain particulars, one of those being the important particular of the name and description of the applicant.

2. From the time the application for a protection visa was lodged, Mr Esguerra received bridging visas and, on a number of occasions, received permission to work. On 11 July 1997, the present applicant wrote to the Refugee Review Tribunal in support of his application and referred to both names of Esguerra and Blanco. It is from this date that Mr Esguerra changed his former practices and began referring to himself in both names. Hitherto, he had used his correct name for civil purposes but in all dealings with the Department he had used his false name. Following the failure of his appeal to the Refugee Review Tribunal, his then solicitors applied for Ministerial intervention on humanitarian grounds under section 417. That application also referred to both names. It was rejected.

3. From 1997 until 1999, Mr Esguerra was involved in a class action in the Federal Court with other applicants for a particular type of visa. The action was unsuccessful and leave to appeal to the High Court of Australia was refused on 18 June 1999. Mr Esguerra held a bridging visa which was due to expire 28 days after the final avenue for appeal had been exhausted. As Mr Esguerra no longer had any entitlement to stay in this country, and as his presence here was known to the Department, he had no alternative but to leave. On 24 July 1999, he returned to the Philippines with Julieta. In Manila, he made the application for his spouse visa and both of them were interviewed in connection with the application.

4. The spouse visa was refused under section 501(6)(c)(ii) of the Migration Act 1958 on the grounds that the visa applicant did not pass the character test as defined. The Minister's direction under section 499 indicates the matters that are to be taken into account in deciding whether this test has been failed on that ground. Paragraph 1.9(b) indicates that one of the matters, in the absence of any countervailing factors, which would constitute a failure to pass the character test, is "whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement".

5. The bogus passport, the forged visa, the entry into Australia under a false identity all fall within the terms of this paragraph. The following paragraph also includes as a failure to pass  the character test, "whether the non-citizen has ever made a false or misleading declaration on an approved form". The application for a protection visa contained a false statement of the applicant's identity, which was misleading in a material particular. The misstatement concerning the applicant's educational record is minor compared with the false basis upon which the application was made. It can have been made only for one purpose, namely to deceive the Department.

6. In my view, there can be no doubt that this conduct falls within the terms of the Ministerial direction. When looked at in isolation, there are no countervailing factors. It seems to me that a finding of failure to pass the character test is inevitable. I do not regard the disclosure of both names from 11 July 1997 as in any way redeeming Mr Esguerra's character. He was forced into that situation. Furthermore, one cannot claim special credit merely for having met one's legal obligations. The only real issue in this matter is whether the residual discretion should be exercised in Mr Esguerra's favour.

7. The Ministerial direction sets out the three primary considerations which I am to bear in mind. These are the protection of the Australian community, the expectations of the Australian community and 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.

8. In considering the protection of the Australian community, I am to consider the seriousness and nature of Mr Esguerra's conduct. There are examples given in the Ministerial direction as to the types of offences which are considered by the Government to be very serious. These include (paragraph 2.6(c)) "presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia". What Mr Esguerra did must be regarded as serious. The nature of his conduct imperils the Australian community in that it attacks the integrity of the immigration system. The harm to the community is recognised in the heavy penal sanctions which Mr Esguerra may attract if criminal charges are brought against him and if he is convicted. Even in the absence of convictions, however, the Australian community requires protection against conduct which may lead to convictions where that conduct is of a serious nature and has grave social implications in the migration system.

9. One of the matters to be considered in relation to the protection of the Australian community concerns general deterrence. I am to consider whether visa refusal would prevent or inhibit the commission of like offences by other persons. In connection with this aspect of the review, a statement of Sally Reay-Young was tendered. I received it in evidence subject to relevance. On further consideration of the statement, and in the light of the evidence given by Ms Reay-Young in cross examination by telephone, I do not consider that the statement affords any assistance and indeed could be unfair to the applicant.

10. Ms Reay-Young signed this statement on 16 September 1999. It was prepared at the request of the litigation section of the Department for use in connection with another application before this Tribunal. It has nothing to do with Mr Esguerra's spouse visa application. Ms Reay-Young at that time (and now) was First Secretary (Immigration) and Principal Migration Officer (Compliance) at the Australian embassy in Manila. The statement is of no utility for a number of reasons. In cross examination she agreed that she was not its sole author. She talked with four other unnamed people at the embassy. Their views are reflected in the statement. Much of the material in the statement is based on anecdotal evidence contributed by people other than Ms Reay-Young. It is impossible to test such evidence. Some of the material in the statement purports to be of a statistical nature but none of the persons concerned (according to Ms Reay-Young) has special qualifications in that field. The statistical conclusions based on the informal reviews that were carried out must therefore be of limited (if any) value.

11. The statement deals in generalities with the experience of the embassy of fraud and forgery in immigration matters. It deals with a number of typical situations which Ms Reay-Young says are experienced in the embassy. These include situations which have no application to the facts of Mr Esguerra's case. For example, she said that upon return to the Philippines, many previous applicants for protection visas would apply for migration to Australia on spouse grounds. Ninety seven per cent of these have admitted that they willingly submitted false claims. At no time has Mr Esguerra made any such admissions. If the evidence is intended to show that he was in a small minority and therefore his failure to make these admissions is somehow dishonest, then it is a curious way of attempting to prove a fact.

12. The material is prejudicial in that it cannot be tested. It is also irrelevant because of its nature. It is not even relevant to the question of deterrence. It does not purport to give the embassy's experience of deterrence of others where visas have been refused. One would think, in any event, that this was quite incapable of demonstration.

1. The document has a value, no doubt, as an intelligence report to compliance authorities in the Department. As a piece of evidence in dealing with an application by an individual seeking to review a Departmental decision, it has no value.

2. An important primary consideration in this case relates to the expectations of the Australian community. It was submitted on the applicant's behalf that mere assertions were not sufficient to determine these expectations. Mr and Mrs Esguerra were well known in the town of Wagga Wagga. A large number of references was tendered in evidence supporting the application for the spouse visa and the consequent return to Wagga Wagga of Mr Esguerra. In my view, paragraph 2.12 of the Ministerial Direction does not refer to a section of the Australian community, such as the applicant's friends or even prominent residents of his town. This is made clear in the statement of purpose appearing at the commencement of the Ministerial Direction. The purpose of refusing a visa under section 501 is "to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community".

3. The Direction has entrusted this Tribunal to articulate these expectations based partly upon its own experience, but principally upon the terms of the Ministerial Direction. The Australian community expects non-citizens to obey Australian laws while in Australia. It would expect that non-citizens enter this country legally and that, while in Australia, they would observe the terms of any visa (forged or otherwise) which facilitated their entry. Mr Esguerra has failed those expectations. The whole basis of his presence for eight years was fraudulent and illegal. It would be contrary to the expectations of the Australian community that any person should be rewarded for such behaviour.

4. The third principal discretionary consideration relates to the best interests of a relevant child. Paragraph 2.3(c) speaks of cases "involving a parental relationship between a child or children and the person under consideration". The meaning of "child" is clear from paragraph 2.13. It refers to a person less than 18 years of age at the time when the decision is intended to come into effect. The "person under consideration" in my view refers to the non-citizen, rather than to the non-citizen's spouse or sponsor. This would be consistent with the way in which all other paragraphs of the Direction have been constructed. Thus, the primary consideration is aimed at the best interests of a child under 18 years of age who has a parental relationship with Mr Esguerra.

5. Mrs Esguerra has been married twice previously. According to a statement she made in a letter dated 11 July 1997 to the Refugee Review Tribunal, she was born in the Philippines, migrated to Australia in 1978 and was granted Australian citizenship in November 1979. In the same letter, she indicated that she was once married to a police officer in the Philippines who was connected with the criminal investigation department. Her daughter, Mrs Heazelwood, gave evidence before me. From her first marriage, Mrs Esguerra had two daughters and three sons. The oldest daughter, aged 26, who is normally employed as a nurse at Royal Prince Alfred Hospital, is currently travelling in Switzerland. The younger daughter (who gave evidence) is aged 25 and is also a nurse at the same hospital. She is married and has a young child. The oldest son, Raymond, is aged 24 and is currently touring with a band in London. The two remaining sons, Roderick Junior (aged 22) and Rowan (aged 16) live with Mrs Esguerra's second husband, Roderick Haggith, in Wagga Wagga. Mr Haggith is aged 73 and is an aged pensioner. He and Mrs Esguerra were divorced on 22 July 1998, almost four months to the day before her marriage to Mr Esguerra. Roderick Junior is a university student. Mrs Esguerra gives him pocket money, nevertheless, from time to time. She also pays $228 per fortnight to Rowan (aged 16) because her former husband, Roderick, is unable to support him.

6. It was submitted that if the spouse visa is refused, and if Mrs Esguerra is therefore obliged to return to the Philippines to join her husband, then the interests of Rowan would be adversely affected because he would no longer receive his allowance of $228 per fortnight. I do not accept this submission for two reasons. Firstly, I do not consider that Rowan is in the situation contemplated by the Ministerial Direction. Although formally a child may include a step-child, there is no parental relationship between Raymundo Esguerra and Rowan. Secondly, the evidence is by no means persuasive that Mrs Esguerra would be unable to continue to pay this maintenance during the two remaining years of Rowan's childhood.

7. She qualified as a nurse in the Philippines and, after her arrival here, achieved registration in New South Wales. She works in a responsible position in a private hospital at Wagga Wagga. Mr Esguerra said in his evidence that he is employed in the Philippines in a company owned by his brother as a special projects supervisor in maintenance works contracts in the petroleum industry. There is no reason to believe that both of them could not continue in their respective professions. Although I accept that standards of living are lower in the Philippines than in Australia, I do not accept that the best interests of Rowan, expressed as they have been purely in financial terms, would be served by the granting of the visa.

8. The applicant's solicitor said that the cornerstone of his client's case was the effect of a refusal upon Mrs Esguerra. This is a matter to be taken into account as a secondary consideration. There is ample evidence that she is presently in ill health. A consulting psychologist diagnosed continuing clinical depression and connected it with her concern for her husband. There are other factors that may have played a part in bringing on this ill health. Mrs Esguerra gave evidence that she had a difficult marriage with Roderick which was not finally brought to a conclusion until July 1998. Nevertheless, I am prepared to accept that the principal cause of her distress (as attested to by her daughter, Mrs Heazelwood, and by a friend, Ms Cooper) is her continued absence from her husband. As she put it, "After two failed marriages he is my whole life. He is the only person I can depend on". I accept that if a refusal of the spouse visa means that they cannot be reunited, then this will cause even greater distress.

9. At the same time, I do not see any reason why she could not return to the Philippines, which she sometimes referred to as "home". There is no reason why her children may not visit her there. Two of them are already travelling. As she is an Australian citizen, there is no reason why she may not return to visit them in Australia.

10. Most importantly, however, it is clear that when their relationship was seriously established, after Shirley Barcarse's death in September 1996, and particularly, when they married on 21 November 1998, Mrs Esguerra knew that her husband was "of character concern" as the Ministerial Direction puts it in paragraph 2.17(b). In 1996 she knew that he had entered this country under a false identity, that he had stayed here for eight years without any legal right to do so and that he had worked illegally. She knew, shortly after the event, that he had made a most unlikely refugee application. Nevertheless, she assisted him in that endeavour. By the time of the marriage, she knew that he had been unsuccessful before the Refugee Review Tribunal and in the class action in the Federal Court. She knew that everything pointed to the likelihood of his having to leave Australia with the consequent difficulty of re-entering. Notwithstanding this knowledge, however, she entered into a formal marriage. Although the marriage was not intended merely to base a spouse visa application (and this is conceded by the Department) the circumstances under which it was contracted have contributed in no small measure to Mrs Esguerra's present distress. The Direction from the Minister compels me to discount that condition and to give it less weight than it otherwise might deserve.

11. There are no other secondary considerations to be taken into account in exercising the discretion. The applicant's solicitor submitted that, notwithstanding Mr Esguerra's past misconduct, he should be able to come back to Australia at some stage and that a refusal of a spouse visa should not amount to a lifetime ban. I do not see how I can usefully offer any comment on this subject. It is beyond the scope of my review. If Mr Esguerra applies again in the future, the matter will no doubt be considered in the light of the circumstances then applicable and the then current law.

12. For the above reasons the decision under review will be affirmed.

    I certify that the 36 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/s of Hearing  28-29 June 2000
    Date of Decision  06 July 2000
    Representative for the Applicant              Mr Ray Turner
      (Tzovaras Legal)
    Representative for the Respondent        Ms Elizabeth Warner
      (Australian Government Solicitor)