Re Gawronski and Minister for Immigration and Multicultural Affairs
[2000] AATA 790
•26 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 790
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1848
GENERAL ADMINISTRATIVE DIVISION )
Re PRZEMYSLAW GAWRONSKI
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr D. Chappell, Deputy President
Date 26 June 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd Dr D Chappell)
……….......................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 300 prospective spouse visa – citizen of the Philippines – not a person of good character – past and present general conduct – lodgement of application for protection visa – application false – application refused – request for Ministerial intervention – request refused – consideration of past and present general conduct – fails the character test – consideration of the discretion – consideration of crimes against the Migration Act – consideration of the need to protect the Australian community – consideration of the deterrence factor – consideration of the expectations of the Australian community – expectation that visitors abide by the law – consideration of relationship with an Australian citizenship – the review applicant would suffer significant hardship – consideration of recent good conduct – decision under review affirmed
Migration Act (1958) s501
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780
Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997)
Irving v Minister for Immigration, Local Government and Multicultural Affairs (1996) FCR 422
Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187
Naidu v Department of Immigration and Ethnic Affairs (AAT 9753; 27 September 1994)
REASONS FOR DECISION
26 June 2000 Dr D. Chappell, Deputy President
BACKGROUND
This is an application by Mr Przemyslaw Gawronski (the review applicant), for the review of a decision made by a delegate for the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act). The decision was to refuse to grant to Mr Gawronski's wife, Ms Cheny Gawronski, formerly Cheny Maliwat, (the visa applicant) a spouse visa. The refusal was based on a finding that Ms Gawronski was not a person of good character. Section 501B of the Act confers jurisdiction on the Tribunal to review this decision.
Ms Belen Oag, a solicitor and migration agent, represented the applicant at the hearing. Mr Gawronski was the only witness called to testify in person. The Tribunal was grateful for the interpreting assistance provided by Ms Agata Smith. Mr Mathew Grey of the Australian Government Solicitor's Office represented the respondent at the hearing. No witnesses were called to testify on behalf of the respondent.
The Tribunal had before it documents filed for the purposes of s37 of the Administrative Appeals Tribunal Act (1975), otherwise known as the T documents. Two exhibits were also received into evidence, exhibit A1 being a statement by the review applicant, and exhibit R1 a statement by Ms Sally Reay-Young, an official of the respondent based at the Australian Embassy in Manila.
CIRCUMSTANCES LEADING TO VISA REFUSAL
The following general facts and chronology of events which led ultimately to the refusal by the respondent of the visa sought by Ms Gawronski were not in dispute between the parties. Ms Gawronski was born in the Philippines on 10 March 1970. She grew up and was educated in that country through to the tertiary level, receiving a Bachelor of Science in biology in 1993 (T: 133).
Following her graduation Ms Gawronski lived for two years in Macau - from March 1993 until April 1995 (T: 131). Ms Gawronski first arrived in Australia on 4 January 1997 on a visitor visa (T: 36). On 14 February 1997 she lodged an application for a protection visa with the respondent (T8; T9). In that application, In response to a question "Why did you leave that country? (the Philippines)", Ms Gawronski states the following:
I was a member of a religious group in our country, we call it El Shaddai. This was headed by Mike Velarde and his family. This group was composed of as much as one-half of the population of our country. I was a bona fide member of it for the past years until one day, I and other members and other high rank officers discovered irregularities with regard to the funds of the group. The bank account that originally in the groups corporation name was that mysteriously transfer to the own account of our founder, Bro Mike Velarde we file a care about it and with the help of some press people. And then this news was heard all over the Philippines and it was the start of the tragedy in my life. I received numerous death threats on the phone and I was sure for that, our founder Bro Mike Velarde whose responsible for that kind of threatenin, so, I'd made my decision to leave our country. That's why I went to Macau, to seek protection but this country will become a communist place in a few year now so I'd decided to go here in Australia.
(T: 134)
On 5 May 1997 the Minister's Delegate rejected Ms Gawronski's protection visa application (T: 148). On 6 June 1997 Ms Gawronski applied to the Refugee Review Tribunal (the RRT) for a review of the Delegate's decision. Ms Gawronski subsequently declined to give evidence in person before the RRT in support of her claim.
On 10 February 1998 the RRT rejected Ms Gawronski's review application (T12). In the course of giving its reasons for this decision the RRT said:
The Tribunal would have wished to question the applicant in order to clarify the source of the threats she claimed to have received but was unable to do so since the applicant declined to attend a hearing. I am unable on the evidence before me to assess the nature and extent of any harm the applicant suffered in the past or might suffer in the future. Her claims amount to no more than a series of unsupported assertions. The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of her claims despite ample opportunity to do so. Nor has she given the Tribunal the opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered. I am not satisfied on the evidence before me that the applicant has a well founded fear of persecution within the meaning of the Convention.
(T:155-156)
On 10 March 1998 Ms Gawronski's solicitor, Ms Clara Suasin, wrote to the Minister seeking his assistance under s417 of the Act (T15). Ms Suasin's letter repeated the claims which had been made in the original protection visa and subsequent RRT applications. Her letter, that is Ms Suasin's letter, written on behalf of Ms Gawronski said:
She left the Philippines because her life was in danger from certain members of a religious group called El Shaddai which is led by Brother Mike Velarde. She has received death threats as a result of the case against this leader brought by the members who found out about the anomalies orchestrated by Brother Mike Velarde. She was constantly harassed and physically attacked by other members who were loyal to the leader. In spite of her reporting it to the authorities nothing has been done to stop these violent incidents against all the members who turned against Mike.
She believes that she will continue to run for her life from this group because she was the only member who had escaped them and the group wants to silence her so that she would not tell anyone on the criminal activities of their leader.(T: 158)
The Minister declined to exercise his discretion under the Act and Ms Gawronski was advised of this decision in writing by a letter dated 2 September 1998 (T17). On 25 September 1998 Ms Gawronski's new solicitor, Ms Oag, wrote a further letter to the Minister again seeking intervention under section 417. Ms Oag's letter repeated the assertions made in the protection visa application, the RRT application and in Ms Suasin's letter.
From 16 October 1998 onwards Ms Gawronski held a series of bridging visas which enabled her to keep her immigration status while the Minister considered her request for a further invention under s417 of the Act. In about October 1998 Ms Gawronski met the review applicant, Mr Gawronski, who is now her husband. I will come back to the circumstances under which they met later in this decision.
On 20 March 1999 Ms Gawronski married Mr Gawronski and on 25 March 1999 the Minister again declined to exercise his discretion under s417 of the Act. On 16 May 1999 Ms Gawronski left Australia to return to the Philippines. On 27 August 1999 Ms Gawronski lodged an application for a spouse visa in the Philippines sponsored by her husband (T33; T34). On 11 November 1999 Ms Gawronski was interviewed at the Australian Embassy in Manila about her spouse visa application. During the course of this interview Ms Gawronski made certain admissions which were recorded in the form of an interview document kept by the respondent's officials. Neither the accuracy nor the validity of this record was challenged by the applicant. The record said, in part:
she applied for visit visa in Hong Kong and she applied herself. Claims purpose was for holidays as uncle supported her visit.
APPLN: On PV for which a protection visa application, she learned about PV through her uncle and friends. Applied 14/2/97 in order for her to work. It was her uncle who encouraged her to apply as many other Filipinos were doing it. It was her uncle's friend who helped her complete the application form, and friend made up story for her.
Her story on application, she was member of El Shadi, a religious group and she knows about a certain group within who is making money out of the contributions. This group learned she knew about the activity and went to hunt her. This story was made up and she knows it was not true.
She received refusal letter and sought advice from aunt who told her to lodge a review. She did and RRT affirmed refusal. That was the time her aunt told her to seek advice from a solicitor and they approached Belen Oag. Solicitor applied to the Minister. It was refused. Solicitor again requested for consideration which was again refused.(T:253)
The evidence does not support that particular contention. It was Ms Suasin who first was consulted and then Ms Oag:
After this she was refused, she departed Australia. PA admitted she provided false information in her PV application and went through the process because she was advised by her relatives. Said she felt sorry for what she did.
(T: 253)On the same date that the report was made, 11 November 1999, the Minister's delegate, Ms Sally Reay-Young rejected the spouse visa application made by Ms Gawronski on grounds that she failed to meet the character test (T1; T2). On 9 December 1999, Mr Gawronski lodged an application for a review of this decision by the Tribunal (T1).
LEGISLATION AND POLICY
I turn now to the legislative and policy provisions which must guide and direct the Tribunal in this matter. In order to be granted a subclass 309 spouse visa, the applicant has to satisfy the relevant public interest criteria, including item 4001 in schedule 4 of the Migration Regulations which requires the Minister to consider whether it is appropriate to exercise his discretion under s501 of the Act to refuse to grant a visa. Section 501 of the Act provides, in part:
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.
Then section 501(6) says:
For the purposes of this section, a person does not pass the character test if:
(c) having regard to either or both of the following:(i) the person's past and present criminal conduct or
(ii) the person's past and present general conduct, the person is not of good character.
It is not suggested in this case that the applicant's past and present criminal conduct is relevant, rather it is the provisions of s501(6)(c)(ii) which apply, that is the person's past and present general conduct. Thus, the issue which the Tribunal must determine today is whether or not Ms Gawronski satisfies the character test for the purposes of s501(6)(c)(ii) of the Act and if the Tribunal is satisfied that Ms Gawronski does not satisfy this test then it may nevertheless exercise the discretion that it has under s501(1) of the Act not to refuse the grant of a visa in favour of Ms Gawronski.
Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon this Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction was given by the Minister under section 499 of the Act on 16 June 1999 titled "Visa Refusal and Cancellation under s501 - No 17". I shall refer to that document which is reproduced at T5, as the Policy Direction. I shall also be making references, throughout the balance of this decision, to the provisions of the Policy Direction which are relevant to this case.
EVIDENCE AND THE CHARACTER TEST
I now turn my attention to the evidence which has been presented concerning Ms Gawronski and the application of the character test under s501. As I have indicated, it was the general contention of the respondent that Ms Gawronski does not pass the character test on the basis of her past and present general conduct. The Policy Direction in paragraph 1.9 has the following to say, as far as it is relevant to this case, about the way in which decision makers should apply this test:
In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case) and where they are relevant would in the absence of any countervailing factors constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt or disregard for the law or for human rights;
(b) 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 of misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both.
(check citizenship direction – some deliberately omitted)
The Policy Direction also indicates that:
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indication that the non-citizen's character may have reformed, thus both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened and the evidence of good acts and recent conduct becomes relevant to the exercise of the discretion.
(T:47-48)
In its Statement of Facts and Contentions the respondent has indicated that it is principally paragraph 1.9(a)(b) and (c) of the Policy Direction, which are most relevant to Ms Gawronski's case. While not disputing this, the applicant's case has proceeded on the basis that there are countervailing factors which would justify a finding by the Tribunal that Ms Gawronski does meet the character test, particularly having regard to her recent conduct in confessing to her wrongdoing and also meeting the terms of her bridging visas. I turn now to the protection visa and other applications made by Ms Gawronski.
The claims that were made by Ms Gawronski at the time of lodging her protection visa have been set out. They were claims which were made in the protection visa itself, to the RRT, and to the Minister in two separate s417 applications. Ms Gawronski was not called to testify in person before this Tribunal and, in particular, to face cross-examination about the reasons why she had made these false claims.
The only personal account which she seems to have provided, or explanation of her conduct, was one made to the respondent's official during the course of her interview at the Australian Embassy in Manila in November 1999. I have already read the notes made at the time of that interview by the interviewing official. In summarising, it would seem Ms Gawronski expressed regret about what she had done, claimed to have followed the advice and accepted the assistance of her uncle and an unnamed friend or friends, and said that she had acted in this way in order to be able to stay in Australia and to obtain work.
She also seems to have provided some explanation of her conduct to her future husband in November or December 1998. Mr Gawronski gave personal testimony to the Tribunal this morning. He indicated that his wife had admitted to him having made false claims but did not give him any details of the nature of those claims, or the applications that she had made.
It was not a matter of dispute between the parties that a genuine relationship does exist between Mr Gawronski and his wife. Mr Gawronski's description of how he meet his wife and what he was told about her migration status, is set out in a statement that was received into evidence:
I first met Jenny in October 1998, she used to sit across from me on the train to work. She would sit with two other women who I later found out to be her aunties. One day I started talking with her and her aunties on the train and we struck up a friendship. She was a bit wary of me at first and turned down my invitation for her to have coffee with me. However, she eventually agreed to come out with me and our relationship began to develop very quickly from there. I knew right from the start that Jenny was a citizen of the Philippines. I recall having a conversation with her on the train when I'd asked her where she was from and said something like she was a visitor from the Philippines and had to return at some stage. I also recall having another conversation with her in my car, I think before Christmas 1998, when I asked her if she'd ever tried to migrate to Australia and she told me that she'd made a refugee claim but was not successful. I think I also asked her how much she had paid for the application as I thought she had been ripped off, however, this was about the extent of my conversations with Jenny about her migration status.
(A1:paragraphs 8-9)
Mr Gawronski also said that he had been very surprised when his wife's application for a spouse visa had subsequently been refused. At paragraph 14 of his statement Mr Gawronski said:
I believe that Jenny is a totally honest person and that it is not in her nature to lie. I know that she did not tell the truth about her refugee application, however, my experience this is not her true character. I've never known Jenny to lie to me, in fact, she was brutally honest early in our relationship about her feelings for me when she made it clear that while she liked me very much she was not yet in love with me.
I turn now to consider the application of the character test to the evidence that I have summarised. The meaning of the term "good character", as it is used in s501 of the Act, is well understood as a result of several persuasive and for this Tribunal binding decisions of the Full Federal Court: see in particular Minister for Immigration and Ethnic Affairs and Baker (1997) 73 FCR 187, and Irving and the Minister for Immigration Local Government and Multicultural Affairs (1996) FCR 422. I shall refer to these as the Baker and the Irving decisions.
Both parties in their respective Statement of Facts and Contentions, refer to Baker and Irving. The applicant's Statement of Facts and Contentions gives the following description of the term "good character" by Lee J in Irving:
Unless the terms of the Act and Regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be provided as a fact whilst the latter is a review of subjective public opinion
This statement of Lee J was approved by the Full Federal Court in Baker, and also more recently by the Full Federal Court in the decision of Goldie v Minister of Immigration and Multicultural Affairs 199 FCA 1277. In this latter decision, in a joint judgment, Spender, Drummond and Mansfield JJ said:
The concept of 'good character' in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.
(at paragraph 8)I would also make reference to the following statement in Baker concerning the way in which a person's general conduct should be taken into account when assessing whether or not they are of good character:
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 a 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.
(at 195)With these judicial benchmarks of Irving, Baker and most recently Goldie clearly in mind, the Tribunal is more than satisfied on the evidence before it that Ms Gawronski fails to meet the character test as a result of her past and present general conduct. There are in fact a number of instances of general conduct engaged in by Ms Gawronski that lay her character "bare very tellingly". Those instances commenced with her admitted participation in the preparation and filing of a false application for a protection visa in February 1997. At the time of filing that application Ms Gawronski signed the following declaration:
I declare that:
The information I have supplied on or with this form is complete, correct and up to date in every detail.
I understand that if I have given false or misleading information my application may be refused, and any visa issued may be cancelled.
I understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia by way of this application.
in accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Ethnic Affairs of any changes to my personal circumstances (e.g. marital status, changes to the family composition) while my application is being considered. I undertake to inform the Department of Immigration and Ethnic Affairs if I change my address for more than 14 days while my application is being considered.
I authorise the Australian government to make any inquiries necessary to determine my eligibility for permanent stay in Australia, and to use any information supplied in this application for that purpose. I have read and understood the information supplied to me in this application. Warning: the provision of false or misleading information in this declaration is subject to penalties under the Migration Act 1958.
(T: 139 -140)
The applicant's signature appears against the date of 14 February 1997. This was clearly a false declaration on Ms Gawronski's part. The false claims made in this protection visa application were then repeated in the subsequent RRT application, and in two applications made to the Minister, which I have referred to. I have read out the claims. They are not simple claims, but ones which reveal an understanding of the basic requirements of establishing a prima facie eligibility for a protection visa, and maintaining that eligibility through the review process.
Ms Gawronski may have been assisted in concocting these false claims by her uncle and friend or friends, unnamed, but in the view of the Tribunal she was a willing and continuing participant in this deceitful behaviour. Ms Gawronski's actions were also not in the Tribunal's views those of a naive or unintelligent person. As I have already indicated, Ms Gawronski is a university graduate and has a good knowledge of English. Her sole motive in making this series of applications was to secure the right to work in this country - a goal which she achieved.
The Tribunal is of the opinion that Ms Gawronski's subsequent disclosure of her immigration misdeeds during the course of her interview in Manilla was no more than an attempt on her part to place herself in the most favourable situation to obtain a spouse visa, rather than a genuine expression of contrition and remorse which flowed from her past misdeeds. The Tribunal is also of the view that Ms Gawronski is a person who is willing to tell lies when it is convenient and also to tell the truth if she believes it will further her own objectives.
DISCRETION
I turn now to the discretion and its exercise. Having not been satisfied that Ms Gawronski passes the character test, the Tribunal must now determine whether it should still exercise its discretion under s501 of the Act not to refuse the grant of the visa in favour of Ms Gawronski. The Policy Direction refers to a number of factors to which the decision maker should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations. The Policy Direction states:
Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the government on the three primary considerations but it should also adopt a balancing process which takes into account all relevant considerations.
(paragraph 2.2)
Bearing in mind these provisions of the Policy Direction, I turn now to the three primary considerations which are, first, protection of the Australian community and the members of the community; secondly, expectations of the Australian community, and thirdly, where there are children, the best interests of those children. In this case it is the first two of these primary considerations which require attention since it is not contended, as I understand it, that the applicant and her spouse have any children of their relationship.
In regard to the first matter which is of primary consideration, that is the protection of the Australian community, the Policy Direction says:
The government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
(paragraph 2.4)
It goes on in paragraph 2.5 to say:
The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated; and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct, general deterrents.
The Policy Direction gives an example, among others, of offences which are considered by the government to be very serious and they include
(c)serious crimes against the Migration Act 1958 including but not limited to offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia.
(paragraph 2.6(c))
The nature of the conduct which was engaged in by Ms Gawronski during the time that she was in this country has already been set out in some detail. It is clear that this conduct falls within that described in paragraph 2.6(c) of the Policy Direction even though Ms Gawronski has not been prosecuted or convicted of any specific crime under the provisions of the Act.
In her submissions made on behalf of the applicant Ms Oag admitted that the conduct which had been committed by her client was serious. In a number of decisions the Tribunal has also stressed the importance of the observance of truth in dealing with officials in migration matters, especially where the truth is known only to the person making the statement: decisions such as Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780; Naidu v Department of Immigration and Ethnic Affairs (AAT 9753; 27 September 1994) and Annencchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997) are among those which are relevant on that particular point.
The Tribunal also received into evidence a written statement (exhibit R1) from Ms Sally Reay-Young, the First Secretary, Immigration and Principal Migration Officer, Compliance at the Australian Embassy in Manila. Ms Reay-Young indicated that she was responsible for reporting on immigration matters from the Philippines including providing information on trends in fraudulent practices within the immigration case load. Her statement indicated that in fulfilling this function she liaised closely with colleagues of the Department of Foreign Affairs and Trade as well as with colleagues in other diplomatic missions in the Philippines.
In her post at the Australian Embassy Ms Reay-Young said she had dealt with over 1000 visa applications ranging from visitor's visas to spouse visa applications. Based on her experience Ms Reay-Young said that Manila was viewed as a high risk and high volume post. The poor economic climate of the Philippines and the acceptance of corruption seemed to encourage applicants to obtain visas through illegal means.
Ms Reay-Young said there was a strong culture of working overseas to remit money back to the Philippines and one of the major issues she confronted in her duties in regard to visitor applications to Australia was that people claimed that they were going to Australia to visit family. They were often sponsored by their family members and then attempted to find employment in Australia. In her statement, Ms Reay-Young said:
One of the most common ways for Filipinos to obtain permission to work is to apply for a protection visa. Most typically the applicant lodges a review with the RRT if the application is refused and then seeks Ministerial intervention under section 417 of the Migration Act. The whole process takes approximately two years. It is interesting to note that only three protection visa applications lodged by Philippine nationals were granted in 1996-97 and none in subsequent years.
Upon return to the Philippines many previous PV applicants will apply for migration to Australia on spouse grounds. 97 per cent of these have admitted that they willingly submitted false claims through the whole protection visa process to obtain permission to work. Whilst some advised that their agent persisted with the preparation of the application most admit that they know that they are applying for refugee status and that they will do anything to be able to work in Australia.(R1: paragraphs 18-19)
Then in a subsequent paragraph Ms Rae Young goes on to say that:
A significant problem with the spouse caseload is that a significant number have previously applied for protection and have gone through the whole review process and have admitted on interview for their spouse application that they provided false and misleading statements…These cases are assessed under the character provisions within the Migration Act. These cases are extremely resource intensive.
(R1: paragraph 27)
In relation to the other matters which are mentioned in the Policy Direction regarding the protection of the Australian community, it was not contended by the respondent that there was a likelihood that Ms Gawronski will repeat her conduct. It was, however, contended that the issue of general deterrence was very relevant in Ms Gawronski's case. Given the evidence from Ms Reay-Young about the nature and extent of migration fraud emanating from the Philippines it was suggested that a refusal of a visa in this case would send a strong deterrent message to persons contemplating similar actions that they would not succeed in circumventing Australia's immigration laws.
In relation to the second primary consideration, that is, the expectations of the Australian community, it was contended on behalf of the respondent in its Statement of Facts and Contentions (paragraph 40) that Ms Gawronski had exploited the trust of the Australian community by wilfully and illegally manipulating Australia's migration program for personal financial gain. It was further submitted that guests of Australia have the moral and legal obligation to abide by the law. Ms Gawronski had shown that she was not prepared to do so.
Apart from these primary considerations the Policy Direction also requires the Tribunal to consider what it terms "other considerations" which may be relevant to the exercise of the discretion under the Act. Paragraph 2.17 of the Policy Direction says:
It is the Government's view that where relevant it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These may include
(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 inter-dependent relationship with an Australian citizen.
As I have indicated it was not a matter of dispute that this was a genuine relationship, and Mr Gawronski is an Australian citizen:
(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 dependent 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.In relation to these particular points it was clear from the statement tendered on behalf of Mr Gawronski, the review applicant, that he would suffer significant disruptions and hardship in his life should the visa not be granted to his wife – points which were conceded, in fact, by the respondent. It was also submitted, on behalf of the visa applicant that there was evidence of recent good conduct in the form of Ms Gawronski's confession to wrong-doing and that this was another factor that should be taken into account.
I turn now to the balancing process which must be carried out in regard to the exercise of the discretion. In all cases of this type, where a decision can have such a direct impact upon people's lives this balancing process is not an easy one. The Tribunal certainly has some sympathy for the situation in which the review applicant, Mr Gawronski, an Australian citizen, now finds himself. In regard, however, to the primary considerations relevant to this case - the protection of the Australian community and the expectations of that community - the Tribunal is firmly of the view that this is a case where very significant weight should be attached to the issue of general deterrence. Ms Gawronski's general conduct must be viewed in the context of the convincing and authoritative evidence provided in Ms Reay-Young's statement about the pervasive nature of the false claims made by Filipino citizens for protection visas in order to allow them to remain in Australia for economic and allied reasons. The Tribunal has already expressed the opinion that Ms Gawronski was not an innocent victim caught up in immigration malpractice but was rather a willing recipient of advice and assistance that allowed her to fulfil her ambitions of working for a number of years in Australia.
The Tribunal has no doubt that it would be a legitimate expectation on the part of the Australian community that Ms Gawronski should not now be rewarded for that conduct. This is especially the case when she and her advisers have utilised the international humanitarian procedures established under the Convention and the Protocols relating to the Status of Refugees (otherwise known as the Refugee Convention). As the Tribunal stated recently in the decision of May v Minister of Immigration and Multicultural Affairs [2000] AATA 480.
As a signatory to the Refugee Convention Australia has established a well recognised assessment process to determine the legitimacy of claims made for protection visas by persons reaching Australian shores. It is a matter of common knowledge that each year many thousands of dispossessed and traumatised persons do arrive in Australia seeking refugee status. It is both an affront to these displaced persons, as well as to the Australian community at large, that certain individuals -
In this case like Ms Gawronski and her uncle and friends:
should abuse this assessment process in such a flagrant and deliberate manner in order to obtain benefits, such as residency and the right to work, to which they would not otherwise be entitled.
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.
(para 83-84)
Thus in the present case the Tribunal is satisfied that there are not sufficient reasons why it should exercise the discretion in Ms Gawronski's favour and grant her the visa the seeks. The decision under review is thus affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell
Signed: .....................................................................................
AssociateDate/s of Hearing 26 June 2000
Date of Decision 26 June 2000
Solicitor and Migration Agent for the Applicant Ms Belen Oag
Solicitor for the Respondent Mr Matt Grey
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