Re Haines and Minister for Immigration and Multicultural Affairs - [2000] AATA 575

DECISION AND REASONS FOR DECISION [2000] AATA 575

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/216

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GEOFFREY HAINES
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date30 June 2000
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – whether visa applicant failed to meet the character test – false protection visa application – disregard for Australia's immigration laws – no exercise of residual discretion.

Migration Act 1958 –ss 417(1), 499, 501

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

This is an application to review a decision of a delegate refusing the grant of a spouse visa to Elizabeth Lumagbas, the wife of the abovenamed applicant. The refusal was based on section 501 of the Migration Act 1958. It was alleged that Ms Lumagbas did not pass the character test as defined in that section.
In 1998, Ms Lumagbas saw an advertisement in a newspaper in her native Manila. The advertiser was a Mr Rex Bamba, who (she said) claimed to be a solicitor from New South Wales and a registered migration agent. He claimed to be able to obtain permission for persons of Filipino nationality to work in Australia. Ms Lumagbas had previously worked as a contract worker in Taiwan and was anxious to work for a time in this country. With her sister, Analisa, she went to see Mr Bamba.
At their interview, he assessed their capabilities. He told Ms Lumagbas that he would be able to obtain permission for her to work in Australia but only for a maximum of three years. She was simply to leave everything to him. Although it was not stated in evidence, it would seem that the same promise was made to Ms Lumagbas' sister.
Mr Bamba returned to Australia leaving his assistant in charge of the Manila office. Through him, they obtained tourist visas. They arrived in Sydney on 22 August 1998 with visas valid for three months.
Mr Bamba met them at the airport and took them to his home, where they stayed for the first two days. They met his family and other Filipino nationals whom he had enlisted as clients. Ms Lumagbas said she became so accepted into Mr Bamba's family that he allowed them to call him uncle. He charged them $1000 per head for what they understood to be a promise to obtain a work permit. The address of Mr Bamba shown in correspondence with the Department was 50 Woburn Abbey Court, Wattle Grove, a suburb of Liverpool south of Sydney. Although Ms Lumagbas said that Mr Bamba had the qualifications referred to above, I have been unable to find a listing for him as a solicitor in the New South Wales Law Almanac for the year 2000. There was no evidence before me that Mr Bamba had ceased to live at Wattle Grove. It is easily accessible by suburban train from Sydney.
Eventually, Mr Bamba produced an application form for a protection visa, which he asked her to sign. She gave evidence that she was excited at the time and agreed that she would have signed "anything that helped me to get a work permit". She insists that she did not know she was making an application for protection as a refugee. She said that she did not even read the form.
I find this difficult to accept and I certainly do not accept that the form was completely blank when she signed it. The photostat copy of the form provided with the section 37 documents shows her signature at the end of the form. Attached to the form, however, was a submission in support, which appeared to relate both to Ms Lumagbas and her sister.
It is useful to reproduce this submission which set out the reasons why the visa applicant claimed refugee protection. It was in these words:
"We seek to apply for permanent residence on the basis of grounds which I maintain can be viewed as demonstrably compelling, having the capacity to satisfy the Chan based "real chance" test.
We wish to state that we are very active as born again cheristian under the umbrella of Jesus is Lord. Since my arrival and even before we left for overseas we were doing voluntary work as missionary in the mountain peoples of Cordillera but particularly in the province of Ifugao. We usually spent months in the mountains spreading the gospel of God to the people in the area who do not belong or subscribe to any form of religion.
In May, June and July, a group of five (5) missionaries including us started our volunteer missionary work in the province of Ifugao. We walked for (4) hours until we reached the township of Natonin. Everyday we travelled in the mountains and stayed for weeks with the mountain residents. Then in July around the third week we came to a group of residents locally known as "Ita's". They live in huts improvised from leaves of trees. We stayed with them for a week explained the teachings of Christ our Lord and at the same time to show them hygiene and cleanliness. Then on the 22 July 1998 at around 10:00pm we were awakened by shouts and loud words spoken by people around the hut we were sleeping. They entered our place and hogtied all five of us.
We were informed that we are there to destroy the community and that they do not believe in our religion and because we stepped on their lands they will experience hardship and other misfortunes unless we are killed and the place where we stayed will be burnt. Our pleadings were not heard they tied us to the trees and scheduled a day for our killings at 3:00am Sunday morning. We were warned not to try to escape because where ever we go we will be pursued and killed. On the Saturday July 25, 1998 while the captors where doing some sort of ceremony our mail companion was able to escape from the ropes tying him. He immediately untie all of us and we started our way down the mountains. One male companion decided to be left behind to detract our captors. We walked crossing the mountains avoiding the usual path and clearings. We were able to reach the township of Natonin and reported the matter to the three (3) member police force. We were advised to immediately proceed and continue our journey toward the next town where transport is available. They told us that they can not possibly protect us because they look for us to kill whereever we will be. We informed the police officer that our companion was left behind.
We reached the next township and waited for the first trip going to Manila. We were informed that our companion who was left behind was seriously injured and in confinement with the Provincial Hospital of Ifugao.
We reported the incident to our Pastor and decided to report the matter to the authorities. On August 1 1998, we noticed a goup of unknown people were keeping a vigil to our place of worship in Montalban and recognised one of them to be one of those who captured and tied us. We were so concerned and afraid of what my happen. We decided to hide and sleep somewhere else and not in our house. We also stopped attending church services and just move around to avoid these people from the tribe.
On the same Wednesday we applied for a visa to come to Australia and was granted on the Friday, August 7, 1998. We continued to hide and left Australia on 21 August 1998.
We submit that we should not be persecuted because of my religion. In terms generally of why my circumstance can be causally related to satisfying the evidentiary ambit associated with Chan, we would draw the attention to the specific judicial dicta which comprises Chan. Your attention is drawn to the judgment of Mchugh J at page 582 where his Honour stated:
"As the U S supreme Cout pointed out in Cardoza-Fonseca application for refugee status may have a well-founded fear of procsecution even though there is only 10% chance that he will be shot, tortured or otherwise persecuted".
"As long as the person is threatened with harm and that harm can be seen as a part of a course of systematic conduc, directed for a convention reason against the person as an individual or as a member of a class, he is being persecuted. Moreover, to constitute persecution, the harm threatened need not be loss of life or liberty. Other forces of harm short of interference with life and liberty constitute persecution".
At this stage, we would seek to rely upon the so-called benefit of the doubt provisions contained in the handbook, which states:
"After the applicant has made genuine effort to substantiate his claims, there may still be a lack of evidence for some of his statements. It is hardly possible for a refugee to prove every part of his case, and indeed if these were requirements the majority of refugees would not be recognised. It is therefore, frequently necessary to give the applicant the benefit of the coubt".
Obviously the military authorities can not provide 24 hours security for us. So there will always be a good chance of killing us.
Please sympathetically considere."

The document is typed up over two and a half pages. Ms Lumagbas has signed at the foot of each of the first two pages, immediately after the last paragraph there appearing and has also signed halfway down the third page, immediately at the end of the typing. There is also an ink amendment in the third paragraph, indicating that someone has carefully read the document and has made an alteration to it. It is clear from the appearance of the document, however, that the whole form and its attachment was not signed in blank. At the very least, this part of the form consisting of the written submission was signed after the submission had been typed out. If Ms Lumagbas did not read it, then she had every opportunity to do so. If Ms Lumagbas was not concerned with the contents of the document which she signed, then she was quite indifferent to its truth. If she did read the document (as I suspect) then she was a party to the creation of a tissue of lies.
There was not a word of truth in the submission. It was entirely an invention, Ms Lumagbas says, of Mr Bamba. I also find this statement difficult to accept. The submission, which was attached to the application for the visa, was a farrago of falsity and specious legal submissions. It is not likely that Ms Lumagbas had any hand in the formulation of the legal submissions. The factual material, however, is so detailed that one cannot help but suspect that Ms Lumagbas assisted in its composition. The document could have had no other purpose than to ensure the grant of a bridging visa which allowed her to work while the application was being considered and while any subsequent appeals were outstanding. Even if the story as related in the submission were accepted as literally true, it did not, as it transpired, set out a well-founded fear of persecution for convention reasons which would entitle her to the visa claimed. I have concluded that in her anxiety to obtain permission to work, Ms Lumagbas was prepared to go to any lengths and to sign any document, however, false, to suit her purpose.
In telephone evidence, Ms Lumagbas said that she could understand and read English quite well. She was educated to university standard in commerce, accounting and management and carries on her profession as an accountant when she can. Her evidence was that she finds competition hard in Manila and that it is necessary for her to go overseas in order to work. The extent of her intelligence and understanding reinforces my conviction that she knew of the falsity of the application when she signed it. Although she blamed Mr Bamba for preparing the false document, it is significant that he was not called to give evidence. There were many other persons who were put forward as witnesses to support Ms Lumagbas' application to this Tribunal. Mr Bamba was significantly missing, although there is no reason to believe that he is not still living near Sydney and would normally be available.
The application for a protection visa was acknowledged by the Department in a letter dated 30 September 1998. A copy of a client information sheet, explaining the work entitlements available to applicants for a protection visa, was sent at the same time. The letter was addressed directly to Ms Lumagbas at an address in Ashfield where, she agreed, she was then living with her sister. There cannot have been any doubt in her mind, therefore, even at that early stage, that she had applied for a protection visa. If she thought that the original document that she signed was merely an application for a work permit (which I do not believe) there can be no doubt that from 30 September 1998, she knew the nature of her application and knew that she was not entitled to recognition as a refugee.
On 24 October 1998, the application was rejected and Ms Lumagbas was directly informed by another letter addressed to her at her apartment in Ashfield. The letter indicates that a copy was also sent to Mr Bamba. The letter refers to the nature of her application and to this country's protection obligations under the United Nations Refugees' Convention. A bridging visa was granted which allowed Ms Lumagbas to remain lawfully in Australia for a period of only 28 days after receipt of the letter. She was informed of her right to apply to the Refugee Review Tribunal for a review of that decision and was sent an appropriate brochure.
She then contacted Mr Bamba and asked what she should do. In evidence, she said that she had never considered that she had applied for a refugee visa. This is clearly contrary to the correspondence she received from the Department. It did not occur to her to clarify the matter with the Department at that stage. As I have said, I do not believe Ms Lumagbas' evidence that she did not know that she had applied for a refugee visa. When I continued to ask her questions about her knowledge of the form, her responses became evasive and repetitive.
Mr Bamba asked her to bring her passport and said that he would file an appeal for her. She doubted whether she should ask him to do this as he might ask for more money. She said in evidence that Mr Bamba said he would give it to her for free. He then proceeded to lodge an appeal. According to a record of the decision, the Refugee Review Tribunal wrote to Ms Lumagbas on 10 December 1998, advising that it was unable to make a favourable decision on the information contained in the papers and inviting her to give oral evidence in support of her claims. She was told that if she did not contact the Tribunal within 21 days, it would be assumed that she did not wish to come to a hearing and that a decision could then be made without further notice. She did not respond to this letter and, accordingly, the matter was dealt with in her absence. This was another opportunity Ms Lumagbas had to ensure that the truth was told. The decision of the Tribunal records that the letter was sent to her direct and that a copy was also sent to Mr Bamba.
The Tribunal rejected the appeal and set out its reasons in a six page document. Ms Lumagbas recalls obtaining a copy of this document at Mr Bamba's house and reading it. The Tribunal reasons summarise the claims made concerning missionary activity and reaction with local people which was quoted above. In her evidence before me, Ms Lumagbas said that she laughed when she read this as it was obviously so fanciful and untrue. She alleges that this was the first time she knew of the details of the story appearing in her application form. Even accepting this to be so, she did not then seek to enlighten the Department or even to raise the matter with Mr Bamba. She said that she accepted Mr Bamba's assurance that he knew what he was doing and she did not wish to query his competence. Nevertheless, she instructed him to take the next appeal step.
This was an application to the Minister for the exercise of his discretion under section 417(1). There was no indication in that application that the whole proceeding had been built on a false foundation. The Minister refused to exercise his discretion. This was conveyed to her in a letter dated 18 January 1999. She continued, however, to live in Australia.
Five months later, she met the applicant, Geoffrey Haines, at a mutual friend's wedding in June 1999. Their relationship began almost immediately. Mr Haines said in evidence that he had no idea that Ms Lumagbas had experienced immigration problems. As far as he knew, she was working and living legitimately in Australia. By mid September 1999, she was advised that it would be necessary for her to leave Australia. Mr Haines said that it was not until this happened that he realised she would have to go away and may have difficulty re-entering. He added that he thought Ms Lumagbas was also surprised at this outcome, although it is hard to see why.
The letter which Ms Lumagbas says that she received in mid September 1999 does not appear to have been reproduced in the section 37 documents. She referred to it as the final letter but in fact her appeal had been finally disposed of nine months previously, when the Minister refused to exercise his discretion in her favour. During the whole of that nine months period, according to Mr Haines, she did not share with him her knowledge that her attempts to continue legal residence had failed. It is not surprising that she was advised that she must leave under supervised departure. It was only then that she broke the news to Mr Haines.
Having talked the matter over, they both then decided to marry. The wedding took place on 27 October 1999. The union between Mr Haines and Ms Lumagbas has been accepted as genuine. There was ample evidence from other witnesses attesting to the bona fides of their marriage. No submissions to the contrary were made.
Having sought advice from a new migration agent, it was then decided that Ms Lumagbas should leave Australia and should apply for a spouse visa offshore. Accordingly, on 9 December 1999, both of them left Australia and arrived in Manila. Four days later, they made application for this visa and were interviewed both separately and together.
During the course of the interview, Ms Lumagbas admitted that she had knowingly applied to remain in Australia on false grounds by engaging a migration agent to submit a protection visa application that she knew contained false information relating to her reasons for seeking Australia's protection. This is how the interview was recorded at the time. Her present evidence, however, is that she trusted Mr Bamba and was not fully aware that he had prepared a false application. As I have indicated, I do not accept this evidence. The weight of objective evidence to the contrary is greater than her mere assertion. She did, however, tell the interviewing officer in Manila that she lodged the application for the sole purpose of being able to work in Australia. She has not resiled from this position. She still said in her evidence before me that this was her reason.
As a result of this interview, the application was considered with reference to section 501. She was invited to make further submissions by letter dated 15 December 1999. The decision refusing the spouse visa was made on 14 January 2000. Submissions were subsequently made by her new migration agent but, as these were directed almost entirely to the question of whether or not she had a genuine relationship with the applicant, they did not assist her case.
The decision was based on paragraph 501(6)(c), namely that she did not pass the character test, having regard to either or both of her past and present general conduct. In applying the test, I am bound by the terms of the direction given by the Minister under section 499 on 16 June 1999. There is a failure to pass the character test, according to that direction, where a non-citizen has, in connection with any application for the grant of a visa, provided a bogus document or made a false or misleading statement. In my view, there can be no doubt that this has occurred. Indeed, so much was admitted by Ms Lumagbas at the interview of 14 December 1999. The only question to arise, therefore, is whether the residual discretion should be exercised in her favour. There are three primary considerations, namely protection of the Australian community, the expectations of the Australian community and the best interests of any relevant child.

In considering the protection of the Australian community, I am to have regard to the seriousness and nature of the conduct in question. Serious crimes against the Migration Act are included among offences which are considered by the Government to be very serious. If prosecuted in Australia, Ms Lumagbas, if convicted, could be sentenced to a term of imprisonment exceeding 12 months. Her conduct, therefore, is directly contemplated by the Minister's direction. It is of that degree of seriousness which should be taken into account when considering the protection of the Australian community.
As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled. Ms Lumagbas made a false application and compounded this by failing to notify the Department or other parties of this fact, despite having had ample opportunity to do so. The groundless application was considered and pursued up to the level of personal intervention by the Minister. Knowing that there was no basis for this course of conduct, Ms Lumagbas showed a complete disregard for Australia's migration laws. All this was done for no reason other than that she wished to be able to work in this country and was looking for short cuts to that goal.
The case made out by her present migration agent was that she should not be punished for merely seeking permission to work. This was, it was said, her only object in seeking advice and the only reason that she persisted. It is not acceptable, in my view, for an educated person to put all the blame on a conniving agent. In my view, Ms Lumagbas knew and understood what she was doing, although she is now reluctant to make full admissions.
General deterrence is a consideration. Refusal of her visa application may deter others from committing similar offences. According to her present migration agent, this would not have a deterrent effect because it would merely encourage people to stay in Australia unlawfully and not return to their home country in order to make an appropriate legal visa application. I fail to understand how making it difficult for persons falsely claiming refugee protection can lead to an increase in their numbers. The fact that Ms Lumagbas returned to Manila in order to make her spouse visa application does not bring credit on her, as her new migration agent submitted. She had no alternative. She had no lawful reason for staying in this country. If she wished to make a visa application she could not have done so without leaving the country.
There are no children whose interests are to be considered. There will, however, be some disruption in the relationship between the applicant and his wife if the visa application is refused. There is no evidence of any other family disruption on either side. Ms Lumagbas presently lives with her mother, who "sells things in the market". She told me that her sister Analisa is still in Australia. I do not know by what right she is entitled to remain here. The point, however, is that there is no evidence that refusal of Ms Lumagbas' visa application will cause hardship either to her mother or to her sister.
Mr Haines and Ms Lumagbas are evidently deeply attached. If they were to be separated, both would be distressed. So far as Mr Haines is concerned, however, it has to be said that he married her after he became aware that she would have to leave this country, knowing that she would have difficulty in re-entering. He cannot be now heard to complain of undue hardship. Mr Haines is an electrical engineer, currently employed by a company in the manufacture of professional lighting equipment. This includes computerised lighting control consoles and dimmers used for live shows and in theatres. Although he may not be able to obtain employment in that particular field in the Philippines, an electrical engineer can always look forward to gainful employment anywhere, if it became necessary for Mr Haines to move to the Philippines. He is currently paying an allowance to Ms Lumagbas, who has decided not to seek employment while her immigration status is unclear.
The degree of hardship suffered by Mr Haines and Ms Lumagbas, in those circumstances, is more than outweighed by the other public interest considerations to which I have referred. There is no good reason why the residual discretion should be exercised in favour of the visa applicant.
Accordingly, the decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Date/s of Hearing  22 June 2000
Date of Decision  30 June 2000
Representative for the Applicant              Mr Bert Ocon
Representative for the Respondent        Ms Jodie Maurer
(Australian Government Solicitor)