Re Grech and Minister for Immigration and Multicultural Affairs

DECISION AND REASONS FOR DECISION [2001] AATA 22

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/313

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FRANCIS GRECH
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon R N J Purvis, QC, Deputy President

Date19 January 2001
PlaceSydney

Decision      The decision under review is affirmed.
  [Sgd] RNJ Purvis
  Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 spouse visa – failure to depart Australia on expiration of visitor visa – false information provided – obtaining and continuing employment in breach of condition of visitor visa – remaining in Australia for 109 days without a valid visa – persons likely to be affected by the decision – whether of good character – discretion – Protection of the Australian community – expectation of the Australian community – best interests of a child – hardship to any Australian citizen – hardship to visa Applicant

Migration Act 1958

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

REASONS FOR DECISION

The Hon R N J Purvis, QC, Deputy President

By an application lodged on 24 February 2000, Francis Grech as sponsor ("the Applicant") seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 11 January 2000. The said decision was one whereby an application by Lilyflor Cabuhat also known as Mrs Lilyflor Grech ("the visa Applicant") for a subclass 309 spouse visa was refused pursuant to section 501(6)(c)(ii) of the Migration Act 1958 ("the Act").
In the reasons given for the decision under review it was inter alia stated:
"…
13.      I find that the Appliant [the visa Applicant] by applying for a PV [Protection visa] on bogus grounds and securing work rights under a Bridging visa was successful in her attempt to extend her stay and work in Australia. I find the applicant sought and gained entitlement under Australia's immigration laws she would not otherwise be entitled to.
14.      I find that Ms Cabuhat was not truthful in her dealings with the department with respect to her application for a PV. I have taken into account that significant resources were deployed to resolve Ms Cabuhat's status in Australia. Notwithstanding Ms Cabuhat's apparent remorse for her actions I find that Ms Cabuhat's general conduct demonstrates a blatant disregard for Australian immigration laws.
15.      Having regard to Ms Cabuhat's general conduct in Australia and based on the evidence before me I find that Ms Lilyflor Cabuhat is not of good character in relation to her past and general conduct and as such fails to satisfy me that she passes the character test.
…
The Primary Considerations:
Protection of the Australian Community
(a) Seriousness and nature of conduct
…
(ii) Mrs Cabuhat has freely admitted to making false and misleading statements to the department. This is an offence under the Migration Act 1958. If convicted the penalty is two years imprisonment.
(iii) Ms Cabuhat wilfully misled the Department through all stages of her application for refugee status. At no stage did she attempt to clarify her situation with the Department.
…
(c)       General Deterrence
Ms Cabuhat's application is only one of many who have wilfully abused the migration system. The refusal of her spouse visa will act as a general deterrent to the community who seeks to obtain benefits to which they would otherwise not be entitled to through illegal means.
The expectation of the Australian community
The Australian community expects non-citizens to obey Australian laws whilst in Australia.
While not denying Ms Cabuhat's right to apply for a Protection visa she did so in the full knowledge and with complicity that she had no grounds to sustain such an application. She compounded this by failing to notify the Department or other parties of this fact despite having ample opportunity to do so.
In continuing with this groundless application up to and including a request for Ministerial Intervention Ms Cabuhat has shown a disregard for Australia's laws and as such has breached the trust of the Australian community.
…
Other considerations
Ms Cabuhat is being sponsored by her husband, Francis Grech, and I accept that refusal to grant a visa will be distressing to both parties.
…
Decision
I have considered all relevant matters…and have decided that:
(a)       Ms Cabuhat does not pass the character test, has been unable to satisfy me that she does pass the character test and is refused the grant of visa.
(b)       As Ms Cabuhat has been refused the grant of a permanent visa her children included in this applicant are also refused the grant of a permanent visa."

The Applicant's representative in a letter of the 28 February 2000 (T1, P5) stated the basis for seeking a review of the decision as:
"…
The basis for the review is Mr Grech's contention that the Department of Immigration and Multicultural Affairs incorrectly rejected his wife on character provisions of the Migration Act 1958 without recognising that the pertaining Onshore Protection application was prepared by her then Migration Agent…who only sought her signature on the application and informed her to continue this story he had provided. This she did but in hindsight she is very remorseful of her mistake, embarrassed, apologetic for her misdoings in this matter.
She is a very well educated lady and these actions are totally out of character as she fundamentally…a very sensitive, honest and law abiding person. One can only summise [sic] at this specific time she lapsed out of character and proceeded to sign, which has led to the present state of affairs.
However we wish to bring to the Tribunal's attention that she is married to an Australian citizen, our client, who is extremely upset, emotionally distressed and is regularly having to visit his family doctor for medication to combat this array of attacks. It is evident that the decision has directly impacted upon two lives in similar fashion.
We truly believe that Ms Cabuhat's actions in respect of this issue cannot be condoned but it is clear that she has shown remorse and embarrassment over the whole matter and seeks to be reunited with her husband in Australia.
Without a doubt there clearly exists compelling and compassionate grounds that fundamentally outweigh the perceived wrongdoings of Ms Cabuhat…"

The Hearing

At the hearing of the application for review the Applicant was represented by Mr Alec Alexandrou, an immigration consultant, the Respondent by Ms Paula Chadderton, legal officer.
The documents lodged by the Respondent pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1-T33 and S1-S13. The parties each tendered written material which was received as exhibits and marked accordingly:

EXHIBIT NO DESCRIPTION
T1 – T33       Section 37 'T documents'
S1 – S13       Supplementary T documents
A        Bundle of material under letter of 15 June 2000 comprising 11 statements
B        11 documents provided under cover of letter dated 11 November 2000
C        Report of Dr Sinnathamby dated 1 December 2000

Fax message from Department of Immigration and Multicultural Affairs and annexures dated 7 December 2000
Application for Bridging visa E and accompanying documents

The Applicant, Mrs Grech and Mrs Rita Elkordi gave oral evidence upon which they were cross-examined. Mrs Grech gave her evidence by way of telephone link up with her in the Philippines.
The Factual Situation
The Applicant has applied to sponsor his wife, the visa Applicant, in her request for a visa to enter into and to remain in Australia.
The Applicant was born in Malta on 10 February 1933 and emigrated to Australia with his then wife and family in 1967. He separated from his wife in 1987 obtaining a decree nisi for dissolution of the marriage in 1996. The visa Applicant was born in the Philippines on 19 December 1960 and like the Applicant was previously married, such marriage being annulled on 20 November 1995.
Of his said first marriage the Applicant has five children, now aged from 32 years to 43 years of age. They all reside in Australia, three of the children being married with families. Of her first marriage, the visa Applicant has two children who both reside with her in the Philippines and are aged approximately 13 years and 10 years of age.
The Applicant has retired from his occupation as a bus driver, is in receipt of an age pension, and lives in housing commission accommodation. The visa Applicant is living in the Philippines with her two children and is employed as a shop assistant.
The Applicant and the visa Applicant first met one another in May 1994 on an occasion when the Applicant visited the Philippines. In March 1997 the visa Applicant arrived in Australia on a three month visitor visa. A few days prior to the expiry of the visitor visa she applied for a Protection visa and in her application inter alia stated:
"I was a campaign manager of my uncle Manual Lipana who ran as mayor of our town San Miguel, Bulacan in 1992. His opponent, Santi Sevilla won the election by committing fraud, terrorism and vote buying. I believe in my uncle's political platform and campaigned intensively to win the election, however our political opponents employed armed goona and terrorised the voters. Some time before the election an armed group of supporters belonging to Santi Sevilla intercepted our group consisting of myself and four other supporters. They appointed (armalite) the gun at my head and said if you don't stop campaigning for Manual Lipana we will kill you. The man fired her armalite in the air. I thought I was shot and collapsed on the ground. I was severing in fear. After that one of the men fired a shot at the front wheel of our vehicle. They then boarded the jeep and drove away laughing. After the election and the canvassing of vote my uncle lost the election and we went on hiding. There were several armed man who came to our house looking for me my parents told them I went to Mindanao and won't be back for a long time.
…
What do you feel may happen to you if you go back to that country?
Our political enemies will liquidate us because another election will be held in 1998 and the incumbent mayor once to ensure that he will run an oppose.
…
Who do you think may harm/mistreat you if you go back?
The political warlord and the armed followers of Mayor Santi Sevilla.
Why do you think they will harm/mistreat you if you go back?
Because we are considered a threat to their political survival.
Do you think the authorities of that country will protect you if you go back? If not why not?
No because I have reported the incident to the police but the police did nothing.
…"

The visa Applicant, in signing the application, declared the truth of the matters set forth in it. During the course of her cross examination, the visa Applicant admitted writing out and signing the Protection visa application form and "making up the story". "I completed the form on my own", she said. She also admitted knowingly applying for the visa on false grounds.

The application for a Protection visa was refused.
In July 1997 the visa Applicant whilst still in Australia commenced working at Pacare Packaging Pty Ltd and in the same month sought Refugee Review Tribunal review of the Protection visa refusal. She was invited to attend a hearing before the Tribunal, accepted but did not in fact attend.
The Refugee Review Tribunal in December 1997affirmed the original refusal to grant a Protection visa. The visa Applicant ceased her work with Pacare Packaging Pty Ltd in February 1998 in which month she sought Ministerial Intervention pursuant to section 417 of the Act. At the time of her application to the Minister she was granted a conditional Bridging visa valid until 18 May 1998. The visa Applicant had been refused permission to work. In March 1998 she again sought Ministerial Intervention. In her applications to the Minister she stated:
"[18 February 1998]
…
I ask you to reconsidered [sic] the decision of the Refugee Review Tribunal on humanitarian reason, You see I had a fear that if I will return to the Philippines my uncles unknown opponents in politics will harass and liquidate me because I was a campaign manager of my uncle's candidacy for mayor last election May 1992. After I receive a death threats [sic] from the unknown opponents I know that my life is in danger. I'm not quite sure what the future holds for me if return to the country because there is another election in May 1998. I beg you to give me some consideration to remain in the peaceful country so I can live in safety and peace.
…
[18 March 1998]
…
I ask you to reconsidered [sic] the decision of the Refugee Review Tribunal on humanitarian reason, You see I had a fear that if I will return to the Philippines my uncles unknown opponents in politics will harass and liquidate me because I was a campaign manager of my uncle's candidacy for mayor last election May 1992. After I receive a death threats [sic] from the unknown opponents I know that my life is in danger. I'm not quite sure what the future holds for me if return to the country because there is another election in May 1998. I beg you to give me some consideration to remain in the peaceful country so I can live in safety and peace.
…"
From March 1998 until May 1999 when the visa Applicant left Australia, she sought and obtained on approximately eight occasions, an extension to the Bridging visa granted to her at the time of her Ministerial Intervention application. No employment was permitted. In fact, she applied for and obtained work as a cleaner and with Milano Rags as a factory worker. In her evidence the visa Applicant admitted working during 1998 and 1999 when on a Bridging visa, well knowing that she was not allowed to work. She said that she had to work, "I owed too much money".
Following the Protection visa refusal the visa Applicant approached a firm, 'Academic and Commerce Immigration Referral Centre', in Melbourne for assistance. She said she was told that on payment of $3000 and the completion of necessary paperwork she would be able to stay in Australia "without problems and could work". Later she discontinued using this firm and "went on my own".
However, when seeking the Bridging visa, the visa Applicant did seek the assistance of a migration agent. She had been told about Bridging visa's, and being able to work, by other Philippine people living in Australia. According to her, the migration agent "teached me how to write a story that's not true".
A few weeks after her arrival in Australia in March 1997, the visa Applicant said that she contacted the Applicant. The Applicant, in a letter to the Manila office of the Department of Immigration and Multicultural Affairs (T29, p204) said that he was aware of the visa Applicant's presence in Australia only in March 1998 when "we recommenced our relationship". According to the Applicant, at that time he was living on his own, having obtained a divorce from his wife in the previous year and "wanted someone to look after" him. On 14 May 1998 an engagement occurred, the Applicant and visa Applicant marrying one another on 14 March 1999. At the time of the engagement, the visa Applicant was waiting the result of her second Ministerial Intervention application. In the month prior to the wedding, her Bridging visa had expired and the visa Applicant was still or had just ceased working for Milano Rags.
According to the Applicant, he did not know of his wife's immigration status before the wedding, she not telling him until some two weeks later. He said he thought she was a permanent resident. In her evidence in chief, the visa Applicant also said that she did not tell her husband about her status until after the wedding. "I was very ashamed", she said. However, during the course of her cross examination, she said that she told him "before we got married, before the wedding". This was in record with what had been written by her in a letter to her representative at the hearing, Mr Alexandrou, on 14 June 2000 (Exhibit A) wherein she said "he [the Applicant] makes me happy. I make him happy too, but before we got married I decided to tell my situation but he's very willing to marry me".
The Applicant said about 40 people attended the wedding but although invited none of his children were present. The visa Applicant did not tell her children about the wedding until she returned to the Philippines in May 1999, "they will understand what I am doing", she said, "when older".
The association between the visa Applicant and the Applicant was said to be close yet according to her she did not tell the Applicant of her various visa applications, approximately 11 in number over the period from March 1997 to March 1999, and of her employment not being permitted. Accepting this to be so the situation does not reflect favourably on the preparedness of the visa Applicant to share her life with the Applicant, or the sincerity of their commitment to one another; this at least from the point of view of the visa Applicant. Accepting that the Applicant was informed of the visa position before the wedding, as admitted by the visa Applicant, he then entered into the marriage being fully aware of the migration problem that lay ahead.
The Applicant maintains little contact with most members of his family. A daughter, Mrs Rita Elkordi, who is in frequent contact with him, and a son Alec, a bachelor who lives with his mother, being the only children displaying any interest in their father. Mrs Elkordi has four young children, her husband having recently undergone heart surgery, and being now on a disability pension. Understandably, she has little time to assist her father. Mrs Elkordi spoke favourably of the visa Applicant, having learnt however of her migration status "a couple of months after the marriage".
The visa Applicant was advised by officers of the Department of Immigration and Multicultural Affairs that she would have to leave Australia by 30 May 1999. She did so, but not without lodging the Spouse visa application three days before her departure. The application included her two children.
The Applicant said that his wife is "a very good woman", and that he has felt "very lonely" since her departure. They correspond by letters but according to the visa Applicant do not telephone each other on account of the cost. The Applicant has not been well and has suffered "mental trauma, anxiety state and depression" which according to his general medical practitioner, Dr Simmathamby (Exhibit A), "is getting worse…it would be a great help if he can have his wife to look after him and nurse him". The Applicant is on medication. According to Mrs Elkordi, her father's well being has deteriorated. The family she said "is not very close", and she can provide emotional support but not otherwise.
Since her return to the Philippines, the visa Applicant has undergone surgery on three occasions for a thyroid related condition. However, she has maintained her employment as a shop assistant and is caring for her two children. In the event of a visa being granted to her, she intends to apply for Housing Commission accommodation in Australia, a two or three bedroom house, in order to provide sufficient space for herself, the Applicant and her two children.
chronology of relevant events
A chronology of relevant events is illustrative of the lengths that the visa Applicant went to, to remain in Australia, of the prohibition on her working and yet the employment she obtained. The numerous applications for extension or renewal of Bridging visa's and, the same not being discussed between the Applicant and the visa Applicant, and only disclosed shortly prior to the wedding, tends to negate the existence of a close bonding between the two of them. The fact of the visa Applicant overstaying her Visitor visa and remaining in Australia for a period in excess of two years, originated with and was maintained by the false and misleading statements made by her.

The relevant events are as follows:
Date   Relevant Event
9 March 1997           Visa Applicant arrives in Australia on a three months visitor visa
4 June 1997 Visa Applicant applies for Protection visa
14 June 1997           Visa Applicant refused Protection visa
July 1997      Visa Applicant commenced working at Pacare Packaging Pty Ltd
7 July 1997    Visa Applicant seeks Refugee Review Tribunal review
10 December 1997 Visa Applicant refused Protection visa
February 1998         Visa Applicant ceases working at Packare Packaging Pty Ltd
18 February 1998    Visa Applicant seeks Ministerial Intervention and was granted Bridging visa valid until 18 May 1998 - no work permitted
18 March 1998        Visa Applicant seeks Ministerial Intervention on a second occasion
14 May 1998 Visa Applicant and Applicant become engaged
18 May 1998 Bridging visa granted – valid until 18 August 1998 – no work permitted
May 1998     Visa Applicant commenced working at Milano Rags
18 August 1998       Visa Applicant granted Bridging visa valid until 18 November 1998 – no work permitted
3 September 1998   Ministerial Intervention declined
7 September 1998   Visa Applicant granted Bridging visa valid until 21 October 1998
21 October 1998     Bridging visa granted until 5 January 1999
22 December 1998 Bridging visa granted until 30 January 1999
5 January 1999       Bridging visa expired
27 January 1999     Bridging visa granted – valid until 1 February 1999 – no work permitted
1 February 1999      Bridging visa expired
14 March 1999        Visa Applicant married Applicant
May 1999     Visa Applicant ceased working at Milano Rags
22 May 1999 Visa Applicant granted Bridging visa – valid until 30 May 1999 – no work permitted
27 May 1999 Visa Applicant lodged Spouse visa application
30 May 1999 Visa Applicant left Australia

relevant legislation and direction

As relevant to these reasons the Act provides:
"s501 Refusal or cancellation of visa on character grounds
(1) 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.
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to…
(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; or
…
otherwise the person passes the character test."

The Respondent contends that having regard to her recent general conduct the visa Applicant is not of good character.

"s234 False papers etc.
A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
S235 Offences in relation to work
(1) If:
(a) the temporary visa held by a non-citizen is subject to a prescribed condition restricting the work that the non-citizen may do in Australia; and
(b) the non-citizen contravenes that condition;
the non-citizen commits an offence against this section.
(2) For the purposes of subsection (1), a condition restricts the work that a non-citizen may do if, but not only if, it prohibits the non-citizen doing:
(a) any work; or
(b) work other than specified work; or
(c) specified work.
(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.
…
(5) The penalty for an offence against subsection (1), (3) or (4) is a fine not exceeding $10,000.
…"

Pursuant to section 499 of the Act the Minister has issued Directions which provide guidance to decision makers, including the Tribunal, in making decisions to refuse or to grant a visa under section 501 of the Act. The Directions provide guidance on the application of the character test as well as the exercise of the discretion to consider whether to refuse a visa, taking into account primary and other considerations.
The Directions provide that the decision maker is to take into account all the relevant circumstances of a particular case including evidence of rehabilitation and recent good conduct. Paragraph 1.9 of the Directions stipulates that in respect of subsection 501(6)(c)(ii) of the Act, any good acts of the citizen after reprehensible conduct are to be considered as indications of character reform and thus both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. The decision maker is, amongst other matters, to consider 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 and whether the person has ever made a false or misleading declaration on an approved form pursuant to the legislation about that person's character or conduct or both.
The primary considerations which are to be taken into account in exercising the discretion in the event of a finding adverse to a person on the issue of character are the protection of the Australian community and members of it, the expectation of that community, and the best interests of a child, particularly in respect of the parental relationship between that child and the person under consideration.
Paragraph 2.5 of the Directions details factors relevant to an assessment of the level of risk to the community. Such factors include the seriousness and nature of the conduct of the person, the likelihood that the conduct may be repeated including any risk of recidivism, and whether visa refusal may prevent or discourage similar conduct on the part of others. With reference to the seriousness and nature of the conduct, paragraph 2.6(c) of the Direction notes that serious crimes against the Act include preventing false or forged documents, and making a false or misleading statement in connection with entry or stay in Australia. Paragraph 2.11 of the Direction, referable to general deterrence, requires that consideration be given to the nature of the offence and whether visa refusal will prevent or discourage others from engaging in similar activities.
The Direction in paragraph 2.12 stipulates that the Australian community expects non-citizens to obey Australian laws while in Australia. A visa refusal may be appropriate simply because the nature of the character concerned is such that the community would expect that the person would not be granted a visa.
The specific acts in breach of the Act deemed relevant to an assessment of character
The acts of the visa Applicant that reflect upon her character include the following:
(1)not departing from Australia on the expiry of her visitor's visa granted on 9 March 1997;
(2)application for a Protection visa in June 1997 on the basis of false information then provided by the visa Applicant;
(3)obtaining employment with Pacare Packaging Pty Ltd in July 1997 in breach of a condition of her Visitor visa;
(4)application to the Refugee Review Tribunal in July 1997 on the basis of false information then provided;
(5)application for Ministerial Intervention in February and March 1998 on the basis of false information then provided;
(6)obtaining and continuing in employment with Milano Rags from May 1998 to May 1999 in breach of a condition of her Bridging visa;
(7)application for and obtaining Bridging visa's through 1998 and into 1999 on the basis of false information provided;
(8)maintaining casual employment in breach of a condition of her Bridging visa's; and
(9)remaining in Australia for 109 days without a valid visa.

other considerations

Persons likely to be affected by the decision

The visa Applicant has her parents, her children, seven brothers and sisters all living in the Philippines. The Applicant has his family as earlier detailed in these reasons living in Australia. It is only in the event of the Applicant living in the Philippines that his Australian family, that is those close to him, would be adversely affected, this by reason of their not being able to visit with him. The latter happening except for his daughter Rita and occasionally his son Alec, is presently non-existent. If the visa be refused and the Applicant remain in Australia, the relevant members of the family would have to bear emotional responsibility much as they presently do.
character references
A number of people from various walks of life wrote letters and supplied attestation's as to the character of the visa Applicant as seen by them. Generally, she was regarded as hard working, committed, having pleasant manners, communicating well with people, a genuine and caring human being and a most respectable lady. It is relevant for the Tribunal to take into consideration these references, subjective as they might be. However in the totality of the matters that require to be considered by the Tribunal and on the aspect of character it is the objective appraisal gleaned from conduct and behaviour of a general nature that is the more apposite.
submissions and decision
as to character
As has been already mentioned in these reasons the Respondent contends that having regard to the present general conduct of the visa Applicant she is not of good character. An assessment as to the character of the visa Applicant should take into consideration her conduct in making the application for a Protection visa, the basis upon which she made application to the Refugee Review Tribunal, her submissions to the Minister and the other matters earlier detailed in these reasons.
The application for a Protection visa was supported by statements purporting to detail facts and circumstances upon which she should be granted such a visa. These facts and circumstances were false and were intended to mislead the relevant authorities. She was invited to be interviewed regarding her application but failed to attend. Her application to the Refugee Review Tribunal was founded upon the same statement of false information, she allowing the process to continue, the tribunal in due course handing down lengthy reasons dealing with false information. This Tribunal is satisfied that the visa Applicant was well aware of the falsity of the information. She maintained the facade so long as it assisted her in receiving further favourable treatment from officers of the department. The latter included her two applications for Ministerial Intervention.
The Tribunal is satisfied that the visa Applicant lodged her application for a Protection visa, pursued the same to the Refugee Review Tribunal and made her applications for Ministerial Intervention well knowing that the same were based on false information.
Not only does the conduct of the visa Applicant reflect adversely upon her, but the same rendered her potentially liable to prosecution pursuant to section 234 of the Act. Furthermore, the visa Applicant remained in Australia as an unlawful citizen working in the country without permission. She was granted a number of Bridging visa's which enabled her to remain lawfully in Australia. However, apart from this she remained in Australia as an unlawful citizen for a period of 109 days between 2 February 1999 and 21 May 1999. The visa Applicant was prohibited from working between 19 February and 18 November 1998 and 27 January and 30 May 1999. Yet, during these periods she worked at Pacare Packaging Pty Ltd and Milano Rags. The Respondent submitted, and the Tribunal accepts, that the visa Applicant worked illegally even though notified by letter and entry in her passport of the absence of permission to work she thereby potentially acting in breach of section 235 of the Act.
The phrase 'not of good character' whilst not defined in the Act is to be accorded its ordinary meaning. As was stated in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94 the concept of good character bears 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 proved as a fact, while the latter is a review of subjective public opinion…common sense suggests that the Act and Regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only envoked when the non-citizen is a person whose lack of 'good character' is such that it is for the public good to refuse entry."
The visa Applicant in her evidence spoke of others informing her of means that might be adopted in order that a visa could be obtained. The conduct in which she engaged is not only contrary to migration legislation but strikes at the very foundation of the right referred to above of an independent, democratic state to decide who is and who is not to be allowed to enter into the country and there remain. It is not for a non-citizen to make the decision. Refusing an application which might otherwise have been accepted where there has been falsity and deception can only draw to the attention of those who might be contemplating similar conduct, the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered. As was stated in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155.
"The observance of truth in dealing with migration matters (particularly where the truth is only known to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia."
It was submitted on behalf of the Respondent that the visa Applicant's actions of knowingly pursuing a Protection visa application based on false information through all stages of the process, including the requests under section 417 for Ministerial Intervention on humanitarian grounds, could not be characterised as 'enduring moral qualities'. Likewise, the overstaying of her visa and acting in breach of a condition of the Bridging visa's granted to her. The Tribunal concurs with this submission. Her conduct was deceitful, in disregard of and in deliberate non-compliance with the Act and a condition of the Bridging visa and contrary to effective administration of the migration legislation.
The Tribunal is satisfied that the visa Applicant is not a person of good character and finds that the correct or preferable decision is to this effect.
exercise of discretion
Protection of the Australian Community
The Australian community would not expect a decision maker to readily condone or forgive a transgressor, one who deliberately seeks to mislead immigration authorities. This even be it that the latter has expressed regret for past actions. The deliberate false statements made by the visa Applicant in seeking to gain the benefit of a Protection visa and the exercise of Ministerial Intervention as well as the obtaining of Bridging visa's shows a serious disregard for the immigration laws of Australia, this for her own personal gain. Persons seeking to enter Australia have a moral and a legal obligation to be truthful in their dealings with authorities and to abide by the Australian law. The Australian community would not expect this conduct to be condoned or rewarded through the grant of a visa. The actions of the visa Applicant in making false and misleading statements fall squarely within the section 499 Direction, number 17 paragraph 2.6(c), detailed above. In falsely claiming to be a person in need of protection as a result of being a refugee, the visa Applicant attempted to deliberately mislead immigration officers, the Refugee Review Tribunal and the Minister. The actions of the visa Applicant potentially are in breach of penalty sections of the legislation. The visa Applicant sought to mislead officers of the department through the various stages of her applications for refugee status. She violated the Act by working without permission. She became an unlawful non-citizen.
Whilst there would be little likelihood of the visa Applicant repeating her conduct in the event of a visa being granted, the refusal of a visa would act as a deterrent to others who seek to obtain benefits to which they would not otherwise be entitled. It is clear from the evidence that the visa Applicant acted after discussing her position with others who pretended to have knowledge of and be familiar with ways and means whereby persons could obtain entry into Australia remain in the country and engage in employment. The means used by the visa Applicant as above detailed, were false and deceitful and were intended by her to obtain a personal benefit or benefits. The refusal of a visa could well deter others from acting in like manner.
Expectation of the Australian Community
Mention has already been made of the community expecting non-citizens to obey the laws of the country. The visa Applicant while knowing that she had no grounds to sustain a refugee application pursued the same in order to obtain a permit enabling her to work. It is said by the Respondent that she compounded her false claims by failing to notify the department of the true reasons for her application despite having the opportunity to do so. There is evidence supportive of this submission. The Australian community expects non-citizens granted visa's to enter into and remain in Australia to abide by the conditions set out in their visa's. The visa Applicant did not do so. She displayed a disregard for this country's laws, thus breaching a trust placed in her. The expectation of the Australian community is that a person behaving as did the visa Applicant should not be granted the privilege of obtaining a relevant visa.
The Best Interests of a Child
There are no children from the marriage between the visa Applicant and the Applicant. The visa Applicant has two children from her previous marriage, the same living in the Philippines. They have not visited Australia, nor has the Applicant met them. They were not informed of the marriage of the visa Applicant and the Applicant until some time after the wedding.
Hardship to any Australian citizen
There is evidence of hardship that would be experienced by the Applicant if the visa Applicant should not be granted a visa to enter Australia. It is true as submitted by the Respondent that the visa Applicant and the Applicant have spent approximately 75 days together since they were married. Nevertheless, the Applicant is 67 years of age, is retired and living on a pension in Housing Commission accommodation, and has only one of his five children displaying a significant interest in him. He does have grandchildren. The Applicant would continue to suffer by reason of the absence of the visa Applicant in not having her to care for him and experiencing the loneliness that he thought would abate following his marriage. The hardship that would be experienced by the Applicant is a consideration that must be taken into account. There would be some hardship experienced by the Applicant's daughter in not having her father nearby to her.
Hardship to the visa Applicant

It was submitted on behalf of the Respondent that the marriage of the Applicant and the visa Applicant is not genuine. The Tribunal does not concur with this submission of the Respondent. The Tribunal is satisfied that the Applicant sought to have a person who could look after him and care for him. He had known the visa Applicant for some time prior to the marriage and felt affection towards her. She agreed to marry him. Whether the Applicant was aware of the migration status of the visa Applicant prior to the marriage is an issue that was raised at the hearing and it is more likely than not that he was so aware. However, the hardship that would be experienced by the visa Applicant apart from the absence of contact with the Applicant and any emotional tension this might cause, would be her inability to engage in gainful employment in this country. She is employed in the Philippines and seemingly is able to care for her two children. The Tribunal does not see the visa Applicant as experiencing great hardship.
On behalf of the visa Applicant it was submitted that she behaved as she did in applying for refugee status by reason of being influenced initially by friends and thence agents and others whose advice she accepted. A number of outside influences, it was submitted, dictated her actions. The Tribunal does not accept this submission. The applications were made by the visa Applicant. She was a party to the making of the false submissions and maintained the falsity through the various stages that she sought to pursue. It is not open to her to claim ignorance of the position that she was maintaining. On behalf of the visa Applicant it was contended that "there clearly has been manifested strong compelling and compassionate grounds that the Tribunal should consider". The "compelling" and "compassionate grounds" include the situation in which the Applicant presently finds himself as has already been discussed. The separation of the Applicant and visa Applicant and the impact that this has had on the emotional state of mind of the Applicant is a relevant consideration and has been discussed. The Applicant is under medical treatment and on medication. If he should leave Australia and travel to the Philippines, further hardship it is said will be imposed upon him. This no doubt is true. He may not be able to maintain his present standard of living and he would be denied the occasional presence of members of his family.
The Tribunal is satisfied on the basis of the evidence before it that the discretion that is available should not be exercised in favour of the visa Applicant. The considerations as earlier discussed, that is the considerations referable to character, are such as to warrant the finding already made. The factors relevant to the exercise of discretion, namely protection of the Australian community and the expectations of the Australian community are very significant in this matter, and outweigh the hardship that might be caused to the Applicant and the visa Applicant. They also outweigh any hardship that may be caused to members of the families of the Applicant and visa Applicant. In the "final submission" made on behalf of the Applicant it was stated:
"We contend also that her intentions and actions in breach of the migration laws were an attempt to remain in Australia and more importantly they occurred as a result of unscrupulous solicitors and migration agents. She may have been less diligent in her dealings with them but her role in the whole was very much a secondary role and not a precipitating one."
There was not any evidence before the Tribunal as to solicitors or migration agents acting other than in accord with instructions they obtained from the visa Applicant. The Tribunal does not accept that the visa Applicant acted in a secondary role. She was the driving force behind the conduct in which she engaged. The contention made on behalf of the visa Applicant as just quoted is disturbing. It is not open to people such as the visa Applicant to seek to obtain the privilege of a visa to enter into and remain in Australia by use of devious means, false and misleading statements. As in this case where the visa Applicant acted with knowledge, full responsibility has to be accepted by that Applicant.
The decision under review is affirmed.

I certify that the preceding 55 paragraphs are a true copy of the reasons for the decision herein of:
The Hon RNJ Purvis, QC, Deputy President.

Signed:         .....................................................................................
  Associate
Date/s of Hearing       11 and 12 December 2000
Date of Decision       19 January 2001
Advocate for the Applicant           Mr Alec Alexandrou
Solicitor for the Respondent        Ms Paula Chadderton

[2001] AATA 22

19 January 2001

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Immigration Status

Good Character

False Information

Breach of Visa Conditions

Unlawful Presence