Re Golding and Minister for Immigration and Multicultural Affairs
[2000] AATA 956
•2 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 956
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1940
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN GOLDING
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date2 November 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION - spouse visa - refusal on character grounds - where the visa applicant failed to meet the character test - false protection visa application - disregard for Australia's immigration laws
Migration Act 1958 – sections 234, 235, 417, 499, 501
Re Drake and Minister for Immigration and Multicultural Affairs (No 2) (1979) 2 ALD 634
Re Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443
Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554
Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Irving v Minister for Immigration and Multicultural Affairs (1996) 68 FCR 422
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Minister for Immigration and Ethnic Affairs v Baker (1997)
Re Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731
White v Minister for Immigration and Multicultural Affairs [1999] FCA 1433
REASONS FOR DECISION
Deputy President J Block
(a) This is an application to review a decision of a delegate given on 12 November 1999, refusing a spouse visa to Mrs Juliet Golding ("Mrs Golding"), and where the Applicant her husband is her sponsor. The refusal was based on a finding that Mrs Golding was not a person of good character.
(b) Mr Andrew Amble, a representative of the Applicant, appeared for the Applicant, while Mr Matt Grey of the Australian Government Solicitor appeared for the Respondent. It is relevant to note that Mr Amble is a qualified barrister although he is not admitted or practising, as such; Mr Amble handled the matter on behalf of the Applicant competently and confidently. The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:A1 Affidavit by Annette Brooker
A2 Affidavit by the Applicant
A3 Certificate by the Heritage of Medical and Dental Clinic
A4 Affidavit by Vernon Hough
A5 Affidavit by Denise Hough, who is the wife of Vernon Hough
A6 Affidavit by Dorothy Grace Golding, who is the mother of the Applicant
A7 Affidavit by Mrs Golding
Evidence was given by all of the persons whose affidavits are exhibits. In the case of Mrs Golding, evidence was given by telephone link to the Philippines. Mrs Golding was assisted by an interpreter in the Tadalog language (the national language of the Philippines). It may be noted that, as was clear during the hearing, Mrs Golding is fluent in English. On occasions she answered questions in English without waiting for the interpreter's assistance. She learned English in the Philippines; in particular she obtained a BSc degree in Commerce at a university in the Philippines, and where the medium of instruction was in English; in addition she had an extended stay in Australia, from May 1996 when she arrived on a visitor's visa, until she returned to the Philippines in June 1998. Document T10 is her application for a protection visa; at page 118 of the T Documents, and in answer to the question "What languages do you speak, read or write ?" she answered "Tadalog and English"
(c) The T Documents refer to the Respondent as the Department of Immigration and Multicultural Affairs; however the decision was made by a delegate of the Minister of Immigration and Multicultural Affairs, and the Respondent is, in these Reasons, cited accordingly.
It is convenient at the outset to refer to certain documents that were before the Tribunal:
(a) The Applicant's Statement of Facts and Contentions commences with "Facts in Chronological Order", commencing with the birth of Mrs Golding in 1966 in the Philippines, and ending with the relisting of the second conference in May 2000; the Facts in Chronological Order ("the Chronology") as contained in that Statement of Facts (excluding any matter which is explanatory or in the nature of commentary) are as follows:
24 Oct 1966 Applicant's wife, Juliet Carbonera Golding (nee Undag) born in San Miguel, Zamboanga Del Sur, Philippines1971 started primary school
1977 completed primary school
1978 started high school
1981 completed high school
21 Sep 1986 son, Mark Louie Undag was born1988 started Bachelor of Science I Commerce supported by parents
1992 completed degree
Early 1993 moved to Manila to look for employment (for nearly two years)
Dec 1994 commenced temporary work at Shoemart, Homeworld Shopping Corp. in Manila
May 1995 employment ceased.
01 Mar 1996 Passport issued in Manila, Philippines
12 May 1996 arrived in Australia on 3 month tourist visa to visit her brother and sister-in-law living in Sydney.
08 Aug 1996 Applied for Protection Visa and Bridging Visa via Adrian Joel & Co, Solicitors and Consultants – Migration. (Form b – T9; Form C – T10)
. . .
Aug 1996 started employment at Koala Oxford Hotel, Paddington
10 Dec 1996 DIMA acknowledged receipt of Application. (T11)
07 Jan 1997 DIMA requested further information referred to in Application. (T12)
09 Jan 1997 Adrian Joel & Co provided submissions on Application. (T13)
20 Jan 1997 DIMA decision that Protection Visa declined. (TI4)
. . .
Bridging visa granted for 28 days past determination of any review of the decision.
Permission to work for duration of Bridging Visa granted..
18 Feb 1997 Lodged appeal to Refugee Review Tribunal.
Aug 1997 Stopped working at Koala Oxford Hotel
05 Sep 1997 Decision of Refugee Review Tribunal (T15)
. . .
15 Sep 1997 Humanitarian consideration under s.417 (T16)
Sep/Oct 1997 Started employment at Chatsworth Plaza Hotel, Chatswood
07 Oct 1997 Requested the Minister to exercise his "public interest power" under s.417 to make a more favourable decision than that of the Refugee Review Tribunal in relation to the first ground of persecution, only. (T18)
08 Oct 1997 Applied for Bridging Visa E -Subclass 050 (T19)
16 Oct 1997 DIMA requested Mrs Golding to attend the Bankstown office to sign the conditions of granting the Bridging Visa E. (T20)
23 Oct 1997 Minister wrote to Adrian Joel & Co advising of delay in finalising s.417 requests. (T21)
04 Nov 1997 Applied for Bridging Visa E -Subclass 050 (T22) granted until 4 February 1998.
Dec 1997 Met John Golding through a work colleague
05 Feb 1998 Applied for further Bridging Visa E -Subclass 050. (T24) granted until 15 Apri11998.
08 Apr 1998 Minister "decided not to consider exercising his power" under s.417 (T26)
16 Apr 1998 Applied for further Bridging Visa E -Subclass 050 (T25) Granted until 16 June 1998.
04 May 1998 DIMA wrote to Adrian Joel & Co advising that Minister had "decided not to consider exercising his power" under s.417. (T26)
05 May 1998 Notice of Intended Marriage comple1:ed and witnessed by Police Officer (T27)
20 May 1998 Applied for further Bridging Visa E -Subclass 050 (T28) Granted until 21 June 1998.
19 Jun 1998 John and Juliet Golding married at Parramatta, Sydney
20 Jun 1998 John Golding completed a Form 40 --Sponsorship for Migration to Australia as spouse Juliet Golding (T31)
21 Jun 1998 Mrs Golding departed Australia for the Philippines.
07 Dec 1998 Mrs Golding completed a Form 80- Personal Particulars for Character Assessment. (T35)
08 Dec 1998 Mrs Golding completed a Form 47- Application for Migration to Australia and lodged it at the Australian Embassy in Manila. (T36)
. . .
30 Sep 1999 Mrs Golding was interviewed again.
12 Nov 1999 Delegate of the Minister made the decision to refuse the application on the ground that Mrs Golding is not a person of good character.
. . .
21 Dec 1999 Application for review lodged with the AAT
20 Jan 2000 T docs received by Applicant
11 Feb 2000 Applicant filed Statement of Issues.
15 Feb 2000 First Conference
Applicant sought copies of "personal statement taken at interview" from Mrs Golding referred to the evidence relied upon as cited in the decision. Respondent sought and was granted eight weeks to supply these statement to the Applicant. Applicant advised that would be relying upon a medical report of his medical condition and character witnesses for Mrs Golding.
17 Feb 2000 Second Conference set down for 12 April 2000.
17 Mar 2000 Applicant sought vacation of second conference date on the grounds that further documents had not been received from the Respondent and re-listing on 24 May 2000.
20 Mar 2000 Second Conference re-listed for 24 May 2000.
12 May 2000 Respondent advised that there were no written records of statements taken from Mrs Golding at interview. The only evidence is the electronically recorded notes of the case officer and a hard copy of these have been provided (T44).
Applicant sought vacation of second conference date and re-listing on 5 July 2000.
15 May 2000 Second Conference date re-listed for 28 June 2000.
(b) Mrs Golding applied for a protection visa pursuant to an application dated 8 August 1996 (T10); Her grounds were set out in a letter dated 20 August 1996, addressed by Mr Adrian Joel, a solicitor and immigration agent. It is unnecessary to quote the whole of that letter; however the first four pages (at pages 134 – 137 inclusive, but excluding the last paragraph on page 137, of the T Documents) read as follows:
We advise that we act for the above-named with respect to the preparation and lodgement of a valid, permissible application for a Class 866 Protection Visa.
Please find attached the required Forms B and C, duly completed and signed by the applicant.
At the outset we would advise the Delegate that our client has been made aware of the stringency characterising Australia's refugee determination process. She has been informed of the definition of "refugee", as stipulated in the United Nations Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention").
She has also been informed of the Chan-based "real chance" test which, of course, underlies refugee assessment both nationally and internationally.
Upon the basis of our instructions, we advise as follows.
The applicant arrived in Australia on 12 May, 1996 on a Visitor Visa. She is the holder of a valid Filipino passport numbered AA871454 issued on 1 March 1996. Her date of birth is recorded in her passport as 24 October 1966.
The applicant's parents are farmers and she has eight siblings. The applicant is a single-mother with a 10 year old son called Mark.
When the applicant fell pregnant her boyfriend ran away and never came back. He was already married with three children. The father was very angry with her because she had become pregnant. During her pregnancy the applicant lived with and was supported by her aunty Alicia in San Miguel Zamboarga Del Sur. The applicant returned with her son to Aloran Misamis Occidental, to live with her parents three months after her son' s birth. On the day she returned, her family, friends and neighbours were very angry with her, but they soon calmed down and became normal again and accepted the applicant and her son.
Between 1988 and 1992, the applicant's parents supported the applicant to attend the Misamis University, Aroqieuta City, and graduated with a Bachelor Degree in Science and Commerce, majoring in Business Administration. Even though the applicant has a university education, she could only find employment as a sales clerk in a department store for six months. No matter how hard she tried to find employment she could not. In addition, she never concealed the fact that she was a single-mother from any potential employer. The applicant feels embarrassed that she cannot become financially independent.
Over the last couple of years the applicant has had a boyfriend called Alan. The applicant found out that Allan is a member of a bank robbery gang. They were often on the news and commonly known as the Kuratong Babling gang. In April 1995, the gang's leader was captured by the Filipino National Police and held in Crame Manila. He was later found dead in his cell. It is rumoured that he was murdered by the police. The other gang members want to avenge his death. The applicant's boyfriend, like the other gang members, tried to force their girlfriends to join them. He also threatened the applicant that should she leave him, he would kill her.
The applicant has a good friend who is a member of the Filipino National Police. He told the applicant that the police know about her boyfriend and advised her to leave him
The applicant fears that should she return to the Philippines, her boyfriend will come after her and carry out his threat. She also fears that no matter how hard she tries to become financially independent, she will never be able to adequately provide for herself and her son in the Philippines.
A refugee is defined by the Refugees Convention as a person who:"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a far is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it".
The applicant is not excluded under Articles ID, lE and IF respectively, from covering by the Refugees Convention.
The applicant is a citizen of the Philippines and is outside that country.
The applicant must fear "persecution". The term "persecution " is not defined by the Convention but not every form of harm will constitute persecution for Convention purposes. The High Court in Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 (Chan's case) spoke of "some serious punishment or penalty or some significant detriment or disadvantage" (at p. 388) if the applicant returns to his or her country of nationality. Likewise, it is stated that the "notion of persecution involves selective harassment" whether "directed against a person as an individual" or "because he or she is a member of' a group which is the subject of systematic harassment", although the applicant need not be the victim of a series of acts since a single act of oppression may suffice (at pp. 429-430).
The harm threatened may be less than loss of life or liberty (p. 430) and includes, in appropriate cases, measures "in disregard of human dignity" or serious violations of the core fundamental human rights. Hathaway defined persecution ''as a sustained or systematic violation of human rights demonstrative of a failure of such protection" (J.C. Hathaway, 1991, The Law of Refugee Status, Butterworths, Canada pp. 104-105).
According to the Handbook, persecution is defined at clause 53 as:"...an applicant may have been subjected to various measures not in themselves amounting to persecution (eg., discrimination in different forms), in some cases combined with other adverse factors (eg., general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on 'cumulative grounds' ".
Clause 55 further states:
"A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved..."
The applicant fears persecution on the Convention ground of "membership of a particular social group", being a single-mother and a woman in Filipino society.
In the Handbook clause 77 states:"A particular social group normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e., race, religion or nationality".
The reader's attention is drawn to the judgment of Sackville, J. in the matter of Minister for Immigration and Ethnic Affairs v. Respondents A & B, currently on appeal to the High Court. This matter provides a useful historical summary of international administrative law with respect to the development of this concept. We seek to maintain there are sufficient innate characteristics whereby the applicant can be duly recognised as being part of a social group by virtue of her sex, living in a Catholic society and being a single-mother.
The reader's attention is drawn to Sackville's judgment at page 55, paragraph 2:"In context it seems to me that the Tribunal was intending to address whether the national government had condoned or failed to prevent local abuses in areas such as that in which the respondent lived. The very point of referring to conflicting views on the extent to which local abuses were condoned or not prevented by national authorities was to consider whether these abuses were simply isolated occurrences unconnected with government policy or practices or were condoned or at least not prevented by the central government…".
The social stigma attached to being a single-mother in a Catholic country like the Philippines is well documented. The applicant believes "honesty is best policy" and has never attempted to hide the fact that she is a single-mother. This honesty has caused the applicant many hardships, including lack of employment.
The applicant's boyfriend, Allan, with his background and the threats he has made to the applicant is also of great concern. He is a violent criminal, capable of any atrocity. Therefore, his threats are taken very seriously.
(c) It was common cause between the parties that the content of the Respondent's Statement of Facts and Contentions in relation to the applicable law is correct. That part of the Respondent's Statement of Facts and Contentions is set out in these Reasons as follows.
THE LAW
The relevant legislation & Direction 17
Subclass 309 (Spouse) Visa13Pursuant to subclause 309.225 of the Migration (1994) Regulations an applicant for a Spouse Visa must satisfy public interest criterion 4001 at the time of the decision. That criterion in turn requires an applicant to satisfy the Minister he or she passes the Character test.
14Section 501(1) of the Act states as follows:
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.
NOTE: Character test is defined by subsection (6).Relevantly, Section 501 (6)(c) of the Act states as follows:
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,.
(ii)the person's past and present general conduct: the person is not of good character.
15The question of whether a person is of good character is answered by reference to the Ministerial direction on the Character test.
16Section 499(1) of the Act states as follows:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.17Direction No.17 of 1999 ("Direction. 17") was made pursuant to Section 499 of the Act on 17 June 1999. Direction 17 provides guidance to decision makers, in making decisions to either refuse or to cancel a visa under Section 501 of the Act. Direction 17 is binding on all decision makers, including merits review tribunals such as the AAT.
18Direction 17 consists of two parts. Part 1 provides directions on the application of the Character test. Non-citizens who are being considered under Section 501 must satisfy the decision maker that they pass the Character test If a non-citizen does not pass the Character test, decision makers are then to exercise discretion on whether to refuse or to cancel a visa. In doing so, decision makers are to take into account both primary and other consideration. Part 2 provides directions as to what those considerations are, and what weight is to be given to them.
19Before finding that a non-citizen is not of good character due 'to their past or present general conduct (Section 501(6)(c)(ii)), Part 1 of Direction 17 requires a decision maker to have regard to the all the relevant factors of the case. This includes evidence of recent good character, but it also specifically includes inter alia the following:
(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 or misleading statement
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined by subsection 5(1) of the Act.
20Under Part 2 of Direction 17, if a non-citizen does not pass the: Character test, decision makers must have regard to the following primary considerations when exercising the discretion on whether a non-citizen should be permitted to enter or to remain in Australia:
(a) the protection of the Australian community, and members of the community .
(b) the expectations of the Australian community; and .
(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or the children.
21In relation to the primary consideration of the protection of the Australian community, the following factors are relevant:
(a) the seriousness and the nature of the conduct;
(b) the likelihood that the conduct will be repeated (including any risk recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
Relevantly, offences under the Act, including the making of a false or misleading statement in connection with an entry or stay in Australia is considered to be a serious offence. The general deterrence factor also operates to deter others from committing similar offences.
22In relation to the primary consideration of the expectation of the Australian community, the non-citizen is expected to obey Australia's laws while in Australia.
23In relation to the best interests of the child, this primary consideration comes into effect if the child would be less than 18 years of age when the decision is intended to come into effect. In general terms, the child's best interests will be served if the child remains with its parents, but decision makers should also have regard to the following:
(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship;
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident;
(e) the likely effect that any separation from the non-citizen would have on the child
(f) the impact of the non-citizen's prior contact with the child;
(g) the time that the child has spent in Australia;
(h) the circumstances, including educational and health facilities of the probable receiving country;
(i) any language barriers for the child in the probable country of future
residence. and.
(j) any cultural barriers for the child in the probable country of future residence.
24When considering whether to refuse a visa, other factors, although not primary considerations, may be relevant. These are to be given less weight than primary considerations, but they may include:
(a) the disruption to the non-citizen' s family, business and .my other ties to the Australian Community;
(b) the genuine marriage to, de facto or interdependent relationship with an Australian citizen or permanent resident;
(c) the degree of hardship which would be caused to immediate family members lawful resident in Australia;
(d) the 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 mater, any cost or bilateral implications of such a breach;
(g) the nature and seriousness of the offence(s) or alleged offence(s);
(h) any evidence of rehabilitation and any recent good conduct;
whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry or stay in Australia, including any significant compassionate circumstance; and;
(k) the fact that the non-citizen has been formally advised in the past by an officer of the Department of Immigration & 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.
25The decision maker is also required to consider whether there are any -international obligations relevant to the non-citizen. Such obligations may arise, for instance, pursuant to the International, Convention on Civil & Political Rights, the Convention Against Torture and the Refugees Convention.
It will be noted that Mrs Golding's application for a protection visa was founded in effect on two grounds:
(a) The first ground can briefly be described as the "boyfriend ground" or the "boyfriend story". It has been set out previously in these Reasons in the quotation from Mr Joel's letter referred to in clause 2 (b); and
(b) The second ground can briefly be described as the "single-mother ground". It too has been set out previously in these Reasons in the quotation from Mr Joel's letter referred to in clause 2 (b).(a) It was common cause between the parties that the boyfriend story was concocted and that it was altogether false. As to who precisely concocted it was the subject of some debate. Mrs Golding said in her evidence that it was not made up by the solicitor, Mr Joel, to whom she was introduced to by a woman who was referred to as Merriam (sometimes referred to in the T Documents as Miriam). Mrs Golding met Merriam at the Koala Hotel in Sydney, having been introduced to her by another woman, referred to as Cacil, soon after her arrival in Sydney. Both Merriam and Cacil are now, according to Mrs Golding, back in the Philippines. Mrs Golding said that the whole of the boyfriend story was concocted by Merriam and that Mr Joel merely summarised it.
(b) There was some discussion during the hearing of file notes made at the Australian Embassy in Manilla in respect of interviews with Mrs Golding. These notes appear at pages 270 to 272 of the T Documents and the Tribunal does not consider it necessary to reproduce them. Page 270 of the T Documents contains a statement which reads "It was the solicitor who suggested that she made up that story . . .".
As to precisely who the author of the boyfriend story was is not clear to the Tribunal. It is clear, though, that even if she was not the author of it, Mrs Golding adopted it, used it and was party to it, and indeed it was she who actually furnished the boyfriend story to Mr Joel.The evidence of Mrs Golding before the Tribunal can be summarised as follows:
(a) Mrs Golding, when she decided to come to Australia in 1996, had not previously travelled outside the Philippines. She applied for a tourist visa with the assistance of a migration agent. He filled in the forms and she signed them; the agent did not explain the consequences of making a false statement. He said that there were parts which were not true but that those untrue parts would not give rise to any problems.
(b) Before coming to Australia Mrs Golding had, after attending primary and high school, obtained a university degree. After graduating she found that employment opportunities were very limited. Her only employment (with Shoemart) is referred to in the Chronology and that job came to an end when her contract was not renewed. She was not thereafter able to obtain suitable employment in the Philippines.
(c) Mrs Golding, when she first came to Australia, stayed with her brother. She had very little money (only $500, which she had saved) and she had no option, according to her evidence, but to seek work. It was in these circumstances that in the third month of her tourist visa (which was issued for a period of 3 months), she sought and obtained on-call employment with the Koala Hotel in Sydney, and which involved her in work twice a week for five hours a day.
(d) Merriam was in the solicitor's office with Mrs Golding when the boyfriend story was furnished to Mr Joel. Merriam made it up; Mrs Golding informed the solicitor of it in English. Mr Joel did not inform her, so she said, as to the consequences of making false statements.
(e) When she was informed that the protection visa had been refused, Mrs Golding consulted with Mr Joel. He advised her that he could apply to the Refugee Review Tribunal ("RRT"). She said that she did not instruct him as to the content of the RRT application, because he knew what to do.
(f) When her application to the RRT failed, it was Mr Joel who told her that she could apply to the Respondent under section 417 of the Act.
(g) Mrs Golding said that after she and the Applicant were married, she did not think that there would be any difficulty in obtaining a spouse visa (notwithstanding her problems relating to the protection visa, the RRT and her section 417 application to the Respondent) because a spouse visa is different from a protection visa.
(h) Mrs Golding said that on 8 December 1998 when she was interviewed by the Australian Embassy in Manila, she told the first interviewer (Tess Sauler) that the boyfriend story was false and that it had been made up by a friend.
The Australian Embassy in Manila asked for additional documents such as a baptismal certificate and a birth certificate which were duly furnished.
(j) A second interview with the Australian Embassy in Manila took place on 30 September 1999, but this time with a different interviewer (Merin Galloway). Mrs Golding said that she told Ms Galloway that the boyfriend story had been made up by a friend, and not by the solicitor.
(k) Mrs Golding said that although originally a Catholic she is now a member of the Philippines Independent Church, which is similar to the Catholic Church. She said that she goes to church every Sunday with her family, excluding only her father who is crippled by rheumatism. Since returning to the Philippines, she has lived with her parents in Aloran, a town on the southern Filipino island of Mindanao, which is some distance from Manila. Trips have been made to Manila in connection, in particular, with the spouse visa application but she is in fact resident with her parents on their farm. She helps them on the farm, particularly at harvest time. She said that she had not sought other work because she "lacks experience".
(l) Mrs Golding said that she is a member of a women's organisation in her village which takes part in annual independence day celebrations.
(m) Mrs Golding said that since her return to the Philippines she has kept up correspondence with the Applicant, his mother and also the Applicant's two nieces. She said that she didn't talk very much with the Applicant's mother when in Australia, but since her return to the Philippines has spoken to her by telephone on a number of occasions. She said that the Applicant's mother regards her son as one of her grandchildren. (The Tribunal notes in this context that Mrs Golding's son, referred to in the T Documents as Mark or Louie (and who was born in 1986), did not accompany Mrs Golding to Australia, and that he was presumably cared for throughout her stay in Australia by Mrs Golding's parents, and that he has never met either the Applicant or the Applicant's mother).
(n) Mrs Golding said that she and the Applicant speak to each other regularly and that he sends her monthly amounts of between $200 and $300.
(o) During cross-examination Mrs Golding advised the Tribunal that she worked at the Koala Hotel at first on an on-call basis, but thereafter regularly, as a room attendant. However, she changed jobs and worked at the Chatswood Plaza from October 1997 until May 1998 and, in particular, during periods when she was the holder of successive bridging E Class visas (four in all) the terms of which prohibited her from working. She said that she worked because she "needed to". She met her husband in December 1997 and he proposed to her in May 1998. She said that she told the Applicant about her visa problems about a month after they met.
(a) It is clear that Mrs Golding committed a number of offences under the Act. In particular, she committed offences under section 234(1)(b) of the Act, the penalty for which is imprisonment for 10 years or one thousand penalty points or both, and under section 235 of the Act, where the penalty (under 235(5) of the Act) is a fine not exceeding $10,000. The Tribunal considers that she committed these offences knowingly and in wilful disregard of the provisions of the Act.
(b) Exhibit A7 is Mrs Golding's affidavit headed Admission Testimony with Prayer for Pardon. It was prepared in the Philippines in language which reads rather oddly in Australia. The fifth last paragraph on the first page of her affidavit is as follows:That my inside apprehension of violating Australian Immigration Laws yielded to my great desire and intension (sic) of further staying and working in Australia where great opportunities abound"
(c) It is perhaps relevant to note that the whole of Mrs Golding's large family, other than one brother, lives in the Philippines. Her Australian-resident brother, with whom she stayed when she first came to Australia, did not give evidence before the Tribunal. There was no evidence before the Tribunal as to any relationship between Mrs Golding and the Applicant's daughter (now aged 16) of a previous marriage. It seems likely that there was very little contact between them. The Applicant's evidence was that he sees his daughter rarely (perhaps once in every 6 months), his divorce from her mother having taken place in very acrimonious circumstances.
(a) I turn next to deal with the evidence of the Applicant himself. The Applicant lives in Richmond, New South Wales, very near to his mother. Although he is a qualified auto electrician, he works as a road worker. This is so because he said there is not much work for him as an auto electrician in Richmond. When asked why he didn't in that event move to areas where there is such work, he said that his mother "would not allow him to go far from her".
(b) The Applicant is 47 years old, was previously married but now divorced and, as set out previously, has a daughter by his previous marriage. He takes home about $600 per week out of which he is obliged to pay $140 per week by way of rent and $170 per week by way of maintenance for his daughter.
(c) The Applicant said that he sometimes augments his earnings from overtime work when it is available. He said that he "likes a drink" but must be careful, because he suffers from insulin-dependent diabetes. A prior relationship with a girlfriend broke up some years ago because of his illness. Mrs Golding, according to his evidence, is aware of the nature and extent of his health problem.
(d) The Applicant said that he phones Mrs Golding on weekends. He deliberately buys phone cards because this method limits his expenditure on the telephone. Without the limits imposed by the use of phone cards, and after a few drinks, he might over-use the telephone at a cost which he cannot afford. As it is he has, according to his evidence, spent in excess of $3,700 on telephone calls to the Philippines.
(e) The Applicant has never visited the Philippines. When asked why he had not done so, he said that he would not wish to leave his mother and father. His father has Alzheimer's disease and is in a nursing home. When it was pointed out to him that his father's unfortunate condition might have the effect that he (the Applicant's father) would not be aware of his son's absence, the Applicant said that he would not want to be away from home "in case anything happened".
(f) The Applicant was asked whether, given that he is a qualified auto electrician, he had made enquiries about work in the Philippines. He said that if there wasn't work in the Philippines for Filipinos there wouldn't be work for him. He said also that he had tried to phone the Filipino Embassy but had never been able to get through to anyone responsible enough to give him any useful information. He said also that he could not be sure of adequate health facilities in Aloren, where Mrs Golding lives, but did accept that they might be available in Manila.
(g) The Applicant struck me as a decent man who is devoted to his parents and also to his sister and her family. He is inarticulate and perhaps rather timid. It seems odd that he should be prepared to spend in excess of $3,700 on telephone calls (an amount which he can ill afford), while baulking at a trip to the Philippines to visit Mrs Golding. This is notwithstanding the fact that they have now been apart for nearly two and a half years since her return to the Philippines.I am nevertheless prepared to accept that the Applicant is devoted to Mrs Golding. He met her as set out previously, in December 1997. He proposed in May 1998 and they were married in June, one day before visiting the Immigration Department in Bankstown in connection with a spouse application, and only a few days before she was obliged to return to the Philippines. He said that he sends his wife $200 per month. As to why he should send her so much out of what is left of his rather small earnings (and having regards to his commitments) is not clear to me, but there is no reason to doubt his statements to this effect.
The Applicant and his wife, Mrs Golding, visited the Bankstown Immigration Department in June 1998. Her first interview with the Australian Embassy in Manila occurred some six months later in December 1998. The evidence was that Mrs Golding's first interview in Manila occurred on the day that she filed her application. As to why there was a gap in time between the June 1998 visit to the Bankstown Immigration Department and Mrs Golding's approach to the Embassy in Manila some six months later was not clear.
I next deal in brief terms with the other persons who gave evidence before me.
(a) Mr Hough knew that Mrs Golding had lied to the Respondent and was inclined to pardon it. He accepted though that he had furnished his affidavit (exhibit A4) when not aware of the full extent of her transgressions against the Act.
(b) Mrs Hough's statement (exhibit A5) was admitted by consent and she was not cross-examined. It cannot be said that her evidence takes the matter very much further.
(c) Ms Brooker knew Mrs Golding as an honest worker; she too was unaware of the extent of Mrs Golding's problems in relation to the Respondent.
(d) Mrs Dorothy Grace Golding (the Applicant's mother) said that she was not concerned about the lies that her daughter-in-law had told. She said, perhaps rather naively, that children shouldn't be punished for their lies because if they were, they would never tell the truth. She also said that she regarded Mrs Golding's son as a grandson. (The Tribunal again notes that she has not met him)
(e) It was clear to me that all four witness are fond of the Applicant and while their acquaintance with Mrs Golding is not extensive, they believe that the marriage is good for him (the Applicant).I turn next to deal with Direction 17 (using the abbreviation given to that term by the Respondent in his Statement of Facts and Contentions under the head of "the Law" and set out previously in these Reasons), noting that Direction 17 is binding on me pursuant to section 499 of the Act. In this clause 11, clause references relate to clauses in Direction 17.
(a) Clause 1.9(a) in dot point 4, makes it clear that breaches of Immigration Law are serious offences. That dot point reads as follows:involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white-collar" crime, fraud, breaches of Immigration law; or involvement in war crimes or crimes against humanity"
(b) Clause 1.9(b) in this context provides:
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 provided a false or misleading statement
(c) Clause 1.11 starts with a sentence reading:
General conduct also includes recent good conduct.
Mr Amble argued at some length that there is evidence of recent good conduct, being Mrs Golding's disclosure to the Australian Embassy in Manila of the fact that the boyfriend story was fabricated. He contended that the RRT did not find that the boyfriend story was bogus, but merely that there was nothing in either of the grounds specified which justified the grant of a protection visa. (It is perhaps relevant to note that Mrs Golding did not give evidence at the RRT hearing as, understandably enough, she was afraid to do so). The circumstances in which that admission came to be made are not clear. It is conceivable that it was made in the context of, and after, enquiries made at the Australian Embassy in Manila, and bearing in mind its inherent improbability. Nevertheless I am prepared to accept that Mrs Golding did confess to her interviewers at the Australian Embassy the fact that the boyfriend story was fictitious.
(d) The Tribunal notes that Mrs Golding's offences against the Act did not occur once or sporadically. On the contrary they occurred repeatedly throughout the whole of her stay in Australia, a period of approximately two years, and demonstrate a wilful disregard of her statutory obligations. The penalties which could be imposed are such that I am obliged, in accordance with Direction 17, to treat them as serious offences. Even assuming that her confessions at the Australian embassy can be considered to be evidence of recent good character (which is debatable) it does not have the effect that Mrs Golding passes the character test.
(e) It is thus necessary to consider whether I should exercise the discretion contained in part 2 of Direction 17. Clause 2.3 provides that there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) 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.
(f) It is my view, in respect of clause 2.3(b), that the Australian community, regarded as a whole, would expect a non-citizen to comply with Australian law. I refer in this context to clause 38 of the Respondent's Statement of Facts and Contentions, which reads as follow:
The second primary consideration is the expectation of the Australian community. The respondent submits that Ms Golding has exploited the trust of the Australian community by wilfully and illegally manipulating Australia's migration program for personal financial gain. The respondent submits that guests of Australia have the moral and legal obligation to abide by the law. Ms Golding has shown that she was not prepared to do so
(g) In respect of clause 2.3(c) it was common cause that there are no children whose interests are involved.
(h) Clause 2.3(a) must be considered in the light of clause 2.5. The conduct was undoubtedly serious, however, the risk of recidivism under clause 2.5(b) is, in my view, remote.
Clause 2.5(c) relates to the question of deterrence. Mr Amble took issue with a number of recent decisions of the Tribunal which contain statements to the effect that a person who persistently offends against the Act should not be rewarded by the grant of a visa. I note that in this context, that I agree with the decision of Deputy President Chappell in Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790 and quote paragraphs 44 and 45 as follows:
44. I turn now to the balancing process which must be carried out in regard to the exercise of 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 advise and assistance that allowed her to fulfil her ambitions of working for a number of years in Australia.
45. The Tribunal has no doubt that it would be a legitimate expectation on the part of the Australian community that Ms Gawronski should not 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 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)
(j) Clause 2.6(c) makes it clear that Mrs Golding's offences are indeed serious crimes under the Act.
(k) In accordance with clause 2.17(b) the marriage between the Applicant and Mrs Golding is relevant. I have said that I am prepared to accept that the Applicant is a devoted to Mrs Golding. It is perhaps not unfair to say that his devotion may at this stage be somewhat romanticised. Telephone calls have served as a substitute for a visit to the Philippines, which would have cost far less than the amount expended on telephone calls. There was no evidence by Mrs Golding, either as given in the course of the telephone link, or in exhibit A7, as to the extent to which she reciprocates his devotion.
(l) As to clause 2.17(c) it is clear that the Applicant would be distressed by the refusal of a visa. His health problem is just one aspect which is relevant in this context. His evidence before the Tribunal leads me to believe that the prospect of him relocating to the Philippines is unlikely. He is, apart from any other considerations, far too close to his parents to move. This said, it must be remembered that he knew of her visa problems before the marriage, just as Mrs Golding knew about the Applicant's health problems before the marriage.
(m) Although Mr Amble made mention of recent good conduct, he was unable to refer to anything other than her confession to the Embassy. He did argue, though, that Mrs Golding in her application to the Minister persisted only with her single-mother ground and that, in other words, she did not persist with the boyfriend story and that this should be held to her credit.
(n) It must be said that having regard to the very considerable number of matters involving women from the Philippines (and as to which see clause 44) that one has to wonder whether refusals do indeed have a negative effect. It may be that it is more apt to put the matter in the negative; that it is to say that the grant of a visa in these circumstances might send entirely the wrong signal.
(a) Mr Amble referred me to a number of decisions of this Tribunal. He also cited the decisions in Irving v Minister for Immigration and Multicultural Affairs (1996) 68 FCR 422 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277. It is convenient in this context to set out clauses 27 and 28 of the Respondent's Statement of Facts and Contentions, which refer inter alia to those submissions, reading as follows:
27. The Full Court in MIEA v Baker (1997) 73 FCR 198 at 197 endorsed Lee J's interpretation that the words "good character" should be understood as a reference to the 'enduring moral qualities of a person'. However it also held the following :
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 the character vare very tellingly. An example is to be found in the judgement of Dixon J. in the sad case of Re Davis (1947) 75 CLR 409 at 426, where the decisive consideration on the question of character was a failure of candour on a single occasion. It was an important occasion.
The decision of Irving and Baker were recently approved of by the Full Federal Court in Goldie v MIMA (unreported Full Federal Court, Spender, Drummond & Mansfield JJ, 14 September 1999, at paras 5-7) In Goldie, the Full Court took the following view of the provision :The concept of "good character" in section 501 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.
28. In White v MIMA (unreported, Federal Court, 22 October 1999),the Full Federal Court approved of French J's comment at first instance that a person's character was an enduring attribute and was formed by an accumulation of acts and omissions. By necessity, it involved an assessment of that person's likely future behaviour.
(b) Although each case of this nature turns on its own facts it is relevant in my view to have regard to decisions and in particular recent decisions of this Tribunal which involve similar fact situations. A search has revealed a large number of just such cases, and which indicate a common problem or theme. That pattern or theme includes most of the following factors:
(i)a female applicant from the Philippines who enters Australia on a visitor's visa;
(ii)soon after arrival an application is made for a protection visa based on whole or in part on false grounds;
(iii)when that application fails there is an application to the RRT, followed, when that application is in turn unsuccessful, by a section 417 application to the Respondent;
(iv)there is often work in Australia in breach of visas and a lengthy stay in Australia (and towards the end of it a marriage in Australia), before a return to the Philippines.
I indicated at the hearing that I intended to refer to similar fact situation decisions, even if they were not cited at the hearing. Accordingly I refer by way of a few examples only to the decisions of Deputy President McMahon in Re Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443, Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, Re Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 and Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554; and of Deputy President Chappell in Re Gawronski (supra) and Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480. In all of these cases the Applicant was unsuccessful. As Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, consistency in decision making is desirable (at 636, 639 and 643). I note in any event that I agree with all of these decisions.
One quotation from one of those decisions will suffice. I refer in this context to the decision of Deputy President McMahon in Re Dumbrell (supra), clauses 25 to 36 of which read as follows:
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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."
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
The evidence before me points to a desire, from the outset, on the part of Mrs Golding to become resident in Australia. This arose purely for economic reasons and not for reasons of persecution. The Philippines may be a Catholic country and it may be that there is something of a stigma against single mothers, but it is difficult to believe that there is actual persecution of what must, in this day and age, be a considerable number of citizens of the country similarly placed. In any event, the single-mother ground did not amount to one which constituted sufficient ground for the grant of a protection visa. Mrs Golding came to this country with very little money, in order to stay with her brother who did not give evidence. Within two months she was working in Australia in breach of her tourist visa, and commencing the process which led to the applications for a protection visa, to the RRT and to the Minister and to which I have referred previously. I note also that the procedures set in motion and pursued by Ms Golding were both time-consuming and expensive. That she wished to leave the Philippines and to settle in Australia is altogether understandable. It is clear that her prospects in the Philippines were not good, while Australia (so she believed) offered her a future. The Tribunal does indeed feel some considerable sympathy for her and appreciates that this decision will be distressing to her, to the Applicant, and to the Applicant's family. However, Direction 17 is binding of me and I am obliged to treat her flagrant breaches of the Act as serious. Moreover they are not in my view outweighed by countervailing factors, including in particular, the interests of the Applicant.
In the circumstances the decision under review is affirmed.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: ............[Marcus Ryan]........................................
AssociateDates of Hearing 23 and 24 October 2000
Date of Decision 2 November 2000
Representative for the Applicant Andrew Amble
Solicitor for the Respondent Matt Grey
C/- Australian Government Solicitor
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