Re Howard and Minister for Immigration and Multicultural Affairs
[2006] AATA 474
•31 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 474
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/767
GENERAL ADMINISTRATIVE DIVISION ) Re Michael Howard Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date31 May 2006
PlaceSydney
Decision The decision under review is set aside and the application remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of granting a subclass 300 (prospective marriage) visa to the visa applicant.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – refusal of prospective marriage visa – refusal on character grounds – past and present general conduct – visa applicant remained in Australia unlawfully on two occasions for approximately 14 years – visa applicant worked without permission – visa applicant fraudulently obtained two passports and two visitor visas with the intention of remaining in Australia – visa applicant made false and misleading statements to the department – total disregard for Australian migration laws – role of migrant networks in deterrence – visa applicant did not tell the applicant she was an illegal immigrant in Australia – meaning of “compassion” in Direction No 21 – application remitted to respondent for reconsideration.
Migration Act 1958 ss 234(1), 499, 500, 501, 501(1), 501(6)(c)(i)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061
Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Re Caruso and Department of Immigration and Multicultural Affairs (AAT 13037, 30 June 1998)
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Re Medyanto v Minister for Immigration and Multicultural Affairs (AAT 12453, 28 November 1997)
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Re Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
31 May 2006 Professor GD Walker, Deputy President Summary
1. The visa applicant, Geraldin Teodoro (now Howard), applied for a subclass 300 (prospective marriage) visa, to live in Australia with her fiancé, the applicant, Michael Howard.
2. The respondent, the Minister for Immigration and Multicultural Affairs (“MIMA”), refused the application on the grounds of the visa applicant’s past and present general conduct including, inter alia, that she entered Australia on two occasions on fraudulent passports and visas; she overstayed in Australia for two periods totalling approximately 14 years and worked without permission; and she provided false and misleading information in connection with a protection visa application. The respondent therefore refused her prospective visa application. That is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal in this case is whether Geraldin (Teodoro) Howard is not of good character having regard to her past and present general conduct so as to be precluded from grant of a subclass 300 (prospective marriage) visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.
Background
4. The applicant, Michael Howard, was born in Australia on 27 January 1977 and is aged 29. He is employed as a chef for the Hawkesbury District Health Service at Windsor Hospital. He is currently undertaking a business management course at TAFE.
5. The visa applicant, Geraldin Teodoro, was born in the Philippines on 5 October 1966 and is aged 39. She is a process worker. On 5 May 1989, Ms Teodoro arrived in Australia on a visitor visa fraudulently obtained in the name of Lucena Austria, date of birth 12 June 1963 (T p40). This visa was valid until 5 November 1989 (T p361), at which time the visa applicant did not leave Australia, but remained here as an unlawful non-citizen.
6. On 18 February 1994, Ms Teodoro signed an instrument evidencing her change of name from Austria to Teodoro (T4 p39). On 3 March 1994, she applied for a refugee and humanitarian visa, on which she falsely stated her date of birth as 12 June 1963 and her occupation as pharmacist. This application was refused on 30 June 1994 and affirmed by the Refugee Review Tribunal (“RRT”) on 18 April 1995.
7. On 22 May 1995, using the name of Teodoro, the visa applicant lodged an application for a protection visa on the ground that she left the Philippines because she feared for her safety and her life (T p59).
8. On the 22 August 1995, the visa applicant was detected working without permission. When interviewed, she admitted that she had worked since her arrival in Australia even though she was aware she had no permission to do so. She also admitted that she had paid 60,000 pesos for her travel documents which she knew were false (T p88). She was subsequently charged with imposition (for the submission of an incoming passenger card in a false name) under s 29B of the Crimes Act 1914 and working in Australia without permission (between 5 May 1989 and 12 May 1994) under s 83(2) of the Migration Act 1958 (T p88).
9. On 23 October 1995, she was interviewed by the department in relation to her protection application. On 31 October 1995, Ms Teodoro’s protection visa application was refused (T pp94-100). On 29 November 1995, an application for a review of this decision by the RRT was lodged (T p101).
10. On 8 January 1996, Ms Teodoro was convicted of one count of untrue representations on an incoming passenger card to obtain the benefit of temporary entry and ordered to enter a recognizance under s 20(1)(a) of the Crimes Act 1914 self in the sum of $1,000 to be of good behaviour for two years and conditionally, to pay a fine of $400 and was also convicted of three counts of working illegally between 1 December 1990 and November 1992 and 16 February 1993 and 12 May 1994 and fined $500 (T23 pp102-103).
11. On 4 September 1997, the RRT affirmed the decision refusing her protection visa, stating that it was implausible that the Red Scorpion political group was looking for the applicant when the group did not form until 1991, some three years after she left the Philippines (T pp107-111). Her application to have her application reconsidered on humanitarian grounds was refused on 19 September 1997 (T p112) and her bridging visa, granted during the appeal process, ceased on 9 October 1997 (T p361). Ms Teodoro did not depart Australia until 7 December 1999, almost two years later (T p359).
12. On 4 March 2000, Ms Teodoro entered Australia on a passport and visitor visa fraudulently obtained in the name of Susana Danlag, date of birth 24 May 1967 (T p360). When this visa expired on 4 April 2000, she did not leave the country but remained in Australia for the second time as an unlawful non-citizen. On 18 March 2000, Ms Teodoro commenced working without permission.
13. On 22 December 2000 (T p124), Ms Teodoro was first introduced to the applicant by his mother, a co-worker of Ms Teodoro’s at MSA (Australia) Pty Ltd. In January 2002, they commenced a relationship. She did not tell the applicant of her status in Australia.
14. On 10 June 2004, Ms Teodoro was detected working illegally and detained at the Villawood Immigration Detention Centre, Sydney. Mr Howard then learned of her illegal status. During her detention, he proposed marriage. On 26 June 2004, Ms Teodoro departed Australia.
15. On 18 October 2004, Mr Howard’s then solicitors, Geronimo & Associates, lodged an application for a prospective marriage visa and supporting documents with the visa office of the Australian embassy in Manila (T27 p113). This application was received on 4 November 2004 (T p339). On 16 November 2004, she was interviewed by a senior migration officer at the Australian embassy (T p345). At that interview, she told the officer the officer that she paid 50,000 Philippine pesos for her first passport which she knew was illegal and wrong but wanted to see Australia and at that time was only young (she was at that time aged 23); she acknowledged she worked illegally for some years before making her refugee claim; that in 2000 she paid another migration agent to obtain a passport using a false identity which she knew was illegal but she wanted to return to Australia and that she entered Australia using her false identity; she did not tell her sponsor about her illegal status and only told him after she was detained in Villawood. She said he was very upset and angry but then was supportive. She confirmed her sponsor’s father paid $20,000 in bond for her release. She also told the interviewing officer that if she had not been caught she would have remained in Australia illegally and kept working. When asked if she had planned to tell her fiancé that she was in Australia illegally, she answered at “the right time” (T pp345-358).
16. On 21 February 2005, an officer of the Department of Immigration and Multicultural Affairs (“DIMA”) advised the visa applicant’s then migration agent, Erlinda Geronimo of Geronimo & Associates that she was considering refusing the prospective spouse application on the grounds of the applicant’s past and present general conduct and allowing her to comment by 29 March 2005 (T35 p362). Ms Geronimo responded to this notice on 21 April 2005 after being granted an extension of time to respond (T35 p366). She submitted that the visa applicant did not deny the breaches of her visa conditions and other related matters but that she was remorseful for these events and it would be unlikely she would commit further breaches. It was further submitted that her relationship with Michael Howard is genuine and that rejection of the visa application “may strongly adversely affect his emotional and psychiatric, professional status”; it has affected Lynette Howard, the applicant’s mother, having to cope with the state of mind of her son; and that Ronald Howard, the applicant’s father, “fears the worst vis-à-vis his son’s mental, psychological and physical health should Ms Teodoro’s application be rejected” (T pp388-389). Documents filed in support included statements from Mr and Mrs Howard, medical report of Dr Neil Schultz of 14 April 2005, who interviewed the applicant and his parents for the purpose of a medico-legal report, and a letter from Mr Kerry Bartlett MHR, federal member for Macquarie (T pp366-386).
17. On 30 June 2005, having considered the submissions of Ms Geronimo, a delegate of the respondent decided to refuse the grant of a visa to Ms Teodoro on the grounds that she did not pass the character test because of her past and present general conduct, including, inter alia, that she remained in Australia as an unlawful non-citizen for approximately 14 years; she entered Australia on two occasions on fraudulently obtained passports and visa; she worked without permission in contravention of her visa conditions; and she has three criminal convictions for being an illegal entrant working without permission and one count of untrue representations on incoming passenger card, and having elected to exercise her discretion under s 501(1) of the Migration Act 1958 to refuse the grant of a visa. That decision was notified to Ms Teodoro, care of Ms Geronimo, on 1 June 2005 (T2 p4). On 20 June 2005, Mr Howard lodged an application for a review of that decision by the tribunal.
18. On 22 June 2005, Mr Howard travelled to the Philippines and on 5 July 2005, Mr Howard and Ms Teodoro were married. He returned to Australia on 12 July 2005.
19. At the hearing, the applicant was represented by Tom Howard, barrister, and the respondent was represented by Tigiilagi Eteuati, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) (Exhibit R1) together with the evidence tendered by the parties at the hearing. The applicant, Lynette Howard and Ronald Howard gave oral evidence in person and Ms Teodoro gave oral evidence by telephone from the Philippines.
Relevant Law and Policy
20. Under s 501(1) of the Act, 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. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), 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:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
21. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
22. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Evidence
23. The evidence of Mr Michael Howard, the applicant, consisted of his oral testimony, his statement dated 17 February 2006 (Exhibit A3), an earlier statement dated 4 October 2005 (part of Exhibit A2) and a statutory declaration dated 24 August 2004 (T pp155-156).
24. Mr Howard works at Hawkesbury District Health Services as a chef, having qualified in that trade through a TAFE course. He is currently studying for a business management certificate in essential services, also at TAFE. His father, Mr Ronald Howard, formerly served with the air force and was moved around from Malaysia, to Queensland to New South Wales. For several years now, however, he has worked for MSA Australia Pty Limited (“MSA”), which operates a safety equipment factory at Toongabbie, New South Wales, employing about 200 people. He holds a managerial position there, and the applicant’s mother is also employed by that company as a supervisor. The applicant’s parents obtained for him his first job, at MSA in 1993. He has one sister, Michelle aged 31.
25. Michael Howard had a troubled adolescence. As a psychologist’s report explains (T pp383-385), as a child and teenager he had attention deficit disorder and was treated for it by several psychiatrists at the time. He had difficulties maintaining a focus on things, a problem that persisted into adulthood. As a young adult he became involved in substance abuse, including intravenous amphetamines and marijuana. His behaviour at home during that time was difficult and his emotional problems caused the entire family distress and hardship. Even today he says he does not like crowds or parties and is rather introverted.
26. He did meet Geraldin Teodoro, the visa applicant, while he was working at MSA in 1993, but had little to do with her as she was in a different area of the company. He met her again, however, at the company’s 2000 Christmas party when he arrived to collect his parents and drive them home. In November 2001 he began to work at MSA again, while he was also working as a chef. He initiated social contact with her and a relationship developed, becoming intimate in late 2001 or early 2002. Since then, “Gina” (Geraldin) while in Australia has accompanied him to nearly all major family events and celebrations, and has been accepted into the family home, his parents regarding her almost as an adopted daughter.
27. He found her a very reserved person who was not open and did not discuss her background very much. At first the fact that she is 10 years older than he was an issue, but later on it ceased to be.
28. Until she was detained in June 2004, he did not know that she was unlawfully in Australia. Certain aspects of her behaviour had led him to wonder about the matter, however. She led an extremely quiet and reserved life and had few possessions. When he asked her if she was legally in Australia she would not answer, and on at least one occasion replied “Ask your mother”. He did ask his mother, but she in turn said it was up to Gina to explain the position. He thought about it but did not pursue the matter because he did not want to jeopardise the relationship.
29. In June 2004 she telephoned him from Villawood Detention Centre in tears and asked for his help. He asked, “What have you done?”, to which she replied “I overstayed my visa. I’ve broken the law. Can you please help me? I don’t know what to do. I’m sorry”. He said he would come and see her at Villawood that afternoon and they would discuss it. He would then do what he could to help her.
30. He took a couple of hours to consider his position. Initially he was angry and upset. Previously he had experienced two bad relationships that had “left me in a mess”. One was at high school, when his best friend took his girlfriend away from him. The other one, more serious, involved a Lebanese girl named Denise, with whom he went out for 17 months when he was between 21 and 22. They were very close and marriage was a real prospect. Then her family sent her back to Lebanon, without telling him, to enter into an arranged marriage with a first cousin. By the time she returned to Australia she had a child and the situation was hopeless from his point of view. He did not want to get hurt again but concluded that his feelings for Gina were such that he would do everything he could to secure her release and would stand by her.
31. His family posted a bond of $20,000 which enabled her to be released for a short period before she left Australia on 26 June 2004 in accordance with the terms of her bridging visa E.
32. While in Villawood she had initially told him only that she had overstayed her visa, which was not true as she had no visa to overstay. Later she admitted that she was “in Australia illegally”. After her release, however, and particularly at Christmas 2004, she “started to tell me bits and pieces”, including that she had been to Australia twice, that Diaz & Diaz had applied for a visa for her, that she had arrived in Australia illegally. It does not appear that she ever told him about the two bogus passports and related documents.
33. His parents approved of the relationship, and while she was at Villawood he decided to propose marriage to her. A notice of intended marriage to take place on 13 March 2005 was issued (T p207). He hoped that they could marry in Australia so that it would not be necessary to break the relationship again. In addition, his father offered his moral and financial support to the couple, but only on the condition that they would postpone the marriage for a period of months in order to ensure that the relationship was stable, that they would not have children and would generally go about seeking a visa for her in the proper manner
34. Mr Howard knew that Gina was employed at MSA but that she sent most of her earnings (from her wages of $560 per week) to her family in the Philippines. Between January 2002 and May 2004, those remittances totalled $22,452 (Exhibit A2). She was the principal supporter for her mother, two brothers and two sisters.
35. Since her departure in June 2004, they have been in contact by text messages and telephone calls, anything up to 15 times a day. He and his father have been sending substantial amounts of money to support her, together with initial sums to help her to buy a business to support the family and to enable her sister to travel to Dubai to work (lawfully).
36. After the prospective marriage visa was lodged in October 2004, Mr Howard travelled to the Philippines to be with her. He was accompanied by his father, who wanted to satisfy himself about Gina’s family background. They returned in January 2005, and travelled back to the Philippines in July 2005 for the wedding. Following the lodgement of the spouse visa application on 4 November 2005, he travelled again to the Philippines at Christmas 2005, and also took her to Thailand for a week’s holiday. He also visited her in the Philippines at Easter 2006, and has thus travelled to the Philippines to be with her four times.
37. Michael Howard believes that the relationship with Gina has settled him down, after his turbulent youth in which he had some dealings with the police (but apparently not resulting in any charges). He believes her to be honest and trustworthy and says she looks after him very well. She is a devout Catholic, and the church plays a large role in Philippine life. He believes she has been punished enough, partly through sacrificing her youth in the service of other people. If she is refused a visa, he would if necessary go and join her in the Philippines. Although he has enjoyed his stays in that country, he would not like to live there, regarding it as violent, crime-ridden and marked by a stark division between the rich and those who have nothing, Gina’s family being in the latter category. He would just have to try to survive from day to day. They plan to have children while Gina is still of the age for it. If he were to move to the Philippines, however, he thinks it would break up his Australian family, who would be traumatised by the prospect of his living without proper employment and in a state of insecurity.
38. After returning to Sydney from his visit to the Philippines last Christmas, he was admitted to Hawkesbury District Hospital suffering from migraines, stress, nausea and insomnia. He suffers from headaches every few days and other symptoms of stress brought about by anxiety over the appeal.
39. He agrees that Gina knew she was illegally in Australia but says that “everyone has secrets”. All her good characteristics and conduct had to be weighed against the “one little thing” that she did, which was to be dishonest with him about her migration status.
40. The evidence of the visa applicant Geraldin Teodoro Howard consisted of oral evidence given by telephone from the Philippines, and a handwritten signed statement dated 11 October 2005 (part of Exhibit A2). There is also a statutory declaration dated 31 March 1995 (T p40), a record of an interview conducted on 23 October 1995 (T pp79-86), a statutory declaration sworn 23 September 2004 (T pp145-152) and a record of an interview held at the Australian Embassy in Manila on 16 November 2004 (T pp345-346).
41. She stated that in 1989 her father asked her to go to Australia to seek work to support the family. Her mother, Mrs Virginia Teodoro, confirms that the enterprise originated in her father’s request (part of Exhibit A2). She said her parents arranged for the passport and visa to be issued in the false name Lucena Austria, with as false date of birth and falsely stating her occupation as pharmacist. They paid between 50 and 60 thousand pesos for it.
42. At various stages she has refrained from giving, or refused to give, any information about who actually procured the false passport, but in her interview of 23 October 1995 she said it was through an agent named FDS Consultants in Manila (T p85). Except when she was falsely claiming to have used a false name to escape abduction or the Red Scorpion movement in the Philippines, she has always maintained that she did not know why the passport had to be in a false name. It seems likely, however, that the false identity and occupation were considered necessary to enable her to obtain a visitor visa. As far as is known, the document itself was an actual Philippines passport.
43. She arrived in Australian on 5 May 1989 and stayed with her brother at Westmead. Knowing she held only an invalid visitor visa for a period of two weeks with a no work condition, she nevertheless promptly found work, and maintains that she had to do so in order to survive and, together with her brother, to support the family in the Philippines. She also supported her nieces and nephews in Australia in part. She was sending up to $500 per month back to her family in the Philippines, and continued to do so for as long as she was working in Australia. Documentary evidence shows that from the period from January 2002 to May 2004 she remitted $22,452 (part of Exhibit A2).
44. In 1994 she officially reverted to her true name and worked under that name. In 1993 she began her employment with MSA, where in about 1995 she met Mrs Lynette Howard, the applicant’s mother. She did not, however, meet Michael or his father, as they were in different areas. She obtained a tax file number, which was more easily done in those days, and paid income tax, although as an employee of a substantial company she had little choice in that matter.
45. The visa applicant admitted that she had lodged and pursued two successive protection visa applications through the various stages of initial rejection, appeal to the Refugee Review Tribunal, a request for section 417 ministerial intervention and baseless participation in a migration class action. She admitted that her allegations about fear of abduction or persecution were total fabrications. She claimed that her then migration agents, Diaz & Diaz, had prepared the applications and other documents for her and that at the time she had not understood the legal requirements for protection visas.
46. The fact remains, however, that she personally persisted with those lies at her interviews with departmental officials. Someone who claims to be of good character, as she does, could not have failed to understand that what she was doing was wrong. Her claim that her father, having had the benefit only of a primary education, did not understand what he was doing when he falsely swore an affidavit to the effect that his daughter faced persecution in the Philippines is equally unconvincing.
47. Following the failure of her protection visa applications, she returned to the Philippines in 1999, using her accumulated leave from MSA. Although at that time she held a valid Philippine passport, she arranged to return to Australia on another bogus passport, apparently because her agent told her that she would not receive a visa if she applied under her true name. Although her family had been happy to see her, she could see that they were starting to suffer from the interruption of her financial support, and she returned to Australia to work at MSA, where she was promoted to a supervisory position.
48. Her purpose in returning was obviously to obtain work unlawfully, but she explained that she came from a background in which there is a cultural obligation on children to support their parents. Asked if the use of false documents was also common in the Philippines, she replied evasively that it is common to work overseas.
49. After being convicted inter alia for working without permission, she continued to work unlawfully to pay the fine for working unlawfully.
50. She was then asked about the false answer to question 72 in her prospective marriage visa application (T p125) in which the “No” box is ticked in answer to a question about whether she had been convicted of a crime or offence in any country. She replied that there may have been a misunderstanding and that her then solicitor, Elinda Geronimo, had helped her to complete the form. It is usual in such cases for applicants to blame their migration agents or lawyers for all false and misleading statements in documents. In some instances an applicant appears to have chosen a disreputable migration agent precisely because such a person can be relied on to put forward an unfounded case. But the evidence in this case is materially different from that. Mr Ronald Howard is emphatic that he was present in Elinda Geronimo’s office when Gina told the agent explicitly about the 1996 migration convictions. It is also significant that in question 72 the applicant admitted leaving a country (Australia) to avoid being removed or deported and, against her interest, incorrectly admitted that she had been removed or deported from any country, including Australia. In the circumstances, therefore, her explanation can be accepted.
51. Gina Howard then related how she had met her husband Michael Howard at the 2000 MSA Christmas party when he called to collect his parents, and met him again when he started work at MSA in November 2001. As the relationship developed she did not tell him about her unlawful status in Australia or her history of migration law violations. Her reason, she said, was that she had developed strong feelings for him and did not want to risk losing him, but in view of her past history the possibility of losing an opportunity for permanent residency cannot have been absent from her mind.
52. Although she could see that he had suspicions, she did not begin to tell him about her legal situation until after she was detained in June 2004. Before she was detained, they had begun to discuss the possibility of becoming engaged, but even then she had told him nothing. She did, however, tell his mother, with whom she was on very friendly terms, when the relationship with Michael was becoming more serious in early or mid-2002. In such a situation one could reasonably suppose that a mother would pass the information on to her son, but for the reasons explained below she refrained from doing so.
53. When Gina began to expose her migration history to Michael while she was in Villawood in 2004, he was initially angry but eventually committed himself to helping her. His father posted the $20,000 bond to secure her release and promised to help the couple, subject to the conditions mentioned earlier. She states that the marriage is genuine, that she regrets her contraventions and has learned her lesson. In any event her family is now independent, and that has freed her from most of the pressures that formerly bore upon her.
54. Mr Ronald Howard gave oral evidence, and adopted his written statement of 3 October 2005 (part of Exhibit A2) as well as his earlier statements of 20 August 2004 (T pp167-168) and an undated earlier statement (T pp376-382). Mr Howard senior started work with MSA in 1990 and is now the manager in charge of new manufacturing techniques.
55. From his early teens, Michael’s relationship with his father had been tense, even hostile. At the age of 15 he left home for a year, had some contacts with the police and was developing a serious drug problem. He suffered from attention deficit disorder and was treated by several psychiatrists for it.
56. Before 2000 he had said he wanted to leave school. Mr Howard opposed that plan but said that he would consent to it if Michael were to obtain employment. Mr Howard had obtained a position for him at MSA, but he left after six months on bad terms, largely as a result of his attitude. All round, he was on the wrong path in life.
57. Before meeting Gina he had two relationships that greatly upset him, one at high school, and the other with Denise, the Lebanese girl, who was sent back to Lebanon to enter into an arranged marriage with a first cousin. Michael had become especially angry after the latter episode and his parents feared that he might end his life. He also violently resented the government for, as he saw it, admitting as immigrants people who had cultural standards and expectations completely at odds with Australian values. There seemed to be a risk that he might commit some act of violence against a member of an immigrant community. He became paranoid and withdrew from all social and family activities, relying only on his parents for emotional support. “In plain layman’s terms, Michael was on a path of self-destruction and there was little if anything either my wife or I could do” (T p378).
58. He became aware of Gina quite early on in her time at MSA. She was a good employee and was promoted even before she departed in 1999. Eventually she rose to the position of team leader over several production lines. In the earlier stages Mr Howard mainly knew about Gina through his wife, who held an informal matriarchal role at the MSA plant and had taken Gina under her wing. She had invited Gina to their home at Christmas 2001 and Michael initiated the first contact with her in January 2002. Over the years Mr and Mrs Howard came to regard Gina as an adopted daughter and included her in all social and family gatherings.
59. Mr Howard had been aware that his son was going out with Gina, but when he announced after she had been detained that they intended to marry, he was “blown out of the water”. He had not realised the relationship had gone so far. It had apparently developed behind the scenes.
60. Mr Howard was under the impression that if Michael and Gina had a child, Gina’s visa problems would disappear. He had received “informal advice” to that effect. Formal advice might have been a safer guide. Nevertheless, he imposed two conditions on his moral and financial support for the engagement. Gina had to return to the Philippines and apply for a spouse visa in the proper way, and they must not have a child until the matter was properly resolved. He did not want Michael to make an impetuous decision on emotional grounds.
61. Mr Howard is emphatic that Gina has made Michael stable and focussed:
…The changes in my son Michael brought about by the influence of Miss Teodoro is [sic] nothing short of a miracle. Michael is now [circa 2004] attending TAFE to gain professional accreditation as a chef, he is now financially independent, regularly banking, emotionally stable and no longer dependent on recreational drugs to cope from day to day. Anybody that comes into regular contact with Michael instantly notices the changes in his demeanour and disposition.
Michael “the prodigal son” has returned and no loving parent could stand idly by and see all his achievement come under threat again (T p379).
62. Both Michael and Gina are fully committed to the marriage. Gina is part of their family and had already become so, quite apart from her relationship with their son. They consider him very fortunate to have her, and she appears to idolise him. In Mr Howard’s view she is of good character, because although she came to Australia illegally, she did not do it for her own benefit but in order to support her family. Her sacrifices in that regard were outstanding and should be rewarded.
63. Mr Howard says that his wife’s health has suffered from the emotional burden created by Michael’s problems, the application and the appeal. They both fear that Michael would remain indefinitely in the Philippines to be with Gina. That would be devastating to his wife, who is already showing signs of emotional and physical distress stemming from the processing of the application. Rejection, he thinks, would place their own relationship in jeopardy.
64. Mr Howard in his evidence tended to overstate his case and introduce irrelevant considerations. He sought to excuse her migration violations with the proposition that “What is deemed to be a serious offence in Australia is very much a way of life in the Philippines”. He accuses the department of attempting to deny the couple the fundamental human right of a family to be together. He asserts that Michael is being punished for wishing to marry a person from another culture and that Gina is being punished for being a dutiful and obedient daughter. Her self-abnegation was such that if performed by a member of the armed services it would qualify her for a medal. While Mr Howard’s interpretation of the facts may be debatable, his exposition of them was accurate and conscientious. In my view he is a sincere and truthful witness.
65. Mrs Lynette Howard in her oral evidence adopted her statement of 20 August 2004 (T pp161-162), her statutory declaration of 27 February 2005 (T pp368-369) and her statement dated 20 February 2006 (Exhibit A7). She described his troubled adolescence, his attention deficit disorder, his difficulty in coping with life because of his sensitive disposition and the traumatic effects the previous relationships, especially the later one, had on him. At the time she had thought Michael would never recover from what Denise’s parents had done to him.
66. Mrs Howard stressed the remarkable effect Gina had exerted on Michael and the way in which his outlook had improved. He is more focussed on everything and has a real purpose in life as a husband, although his concentration problems sometimes return when he thinks about the present application, with effects on his studies for his business management course.
67. Until he met Gina he was “somewhat of a lost soul”, and both his parents had been very worried about him. Mrs Howard considers Gina’s “past indiscretions with immigration” to be very unfortunate and wrong, but as a mother says she understands the desperation and despair she found herself under as her widowed mother and younger sister leaned heavily on her to provide for them.
68. Since her return to the Philippines, Mrs Howard says, Gina is being “worked into the ground to provide for them” and believes that in the long run the result would be that her son would go to live in the Philippines to help ease her burden. In fact he had made that intention clear to his parents. “The prospect of this is what I fear most as the Philippines is a country renowned for danger to westerners. I emotionally could not even contemplate the thought of this as he and I are extremely close, when Gina was taken into custody and the ongoing battles to get her out of detention and back home again resulted in myself being taken to the emergency ward of our local hospital with abdominal pains for which I was kept in for the best part of the day for tests and medicated for the pain … All the while Gina was only thinking of the effect all this had on our family and Michael” (T p368).
69. Before Gina had been detained Mrs Howard had been aware there was a relationship, especially as they both gave her money to save on their behalf in a joint account.
70. Gina had told her in the first half of 2002 that she was illegally in Australia and Mrs Howard had told her husband. She could not bring herself to break the news to her son, however, because she had seen the effect of his earlier unhappy relationships and could not bring herself to hurt him. As her reassurances to him at the time of his earlier experiences had proved unfounded and had made matters worse, she did not want to intervene again. She could not break his heart a third time. In any event, she thought he would be angry with her if she were to tell him of Gina’s situation, and that in itself might have had adverse consequences.
71. She could not believe that Denise’s parents could commit such a cold-hearted act towards their own daughter and maintain an outward pretence about it, not even telling Michael. In that case he had found out about the arranged marriage from a third party and it had made him suicidal, almost homicidal. Still Denise’s parents told him nothing, and Mrs Howard repeatedly went to their house to ask them about the position, but they would not tell her. In her view they had behaved callously towards both Denise and Michael. Adding to the stress was that it was a “dark time” for all the family. Both Mrs Howard’s parents had died in the preceding months. The result was that she knew she could not tell him about Gina’s status, but also knew that there could be serious consequences from not telling him and that sooner or later he would find out. At the same time she was angry with Gina for telling her about her unlawful situation.
72. She emphasised that the change in Michael had been remarkable, especially since the wedding. Previously he could not study, but now he was a success, although sometimes having sombre moments because of the anxiety and uncertainty. He is now on close terms with his father, something Mrs Howard could only dream of in past years. Gina had given him a purpose in life that she never seen before. She loves him and looks after him. Nothing else that had happened in his life could account for the changes she had seen, and she feared that without Gina he might revert to his previous problems.
73. As regards Gina’s character, she said that she had always found her to be honest, trustworthy and a totally loyal person. She has admirable family values and all the qualities to make her an asset to the family and to the Australian community. Over the years Mrs Howard had known her they had developed a special bond, especially when Gina’s father died. She became like a daughter to Mr and Mrs Howard and if her appeal were unsuccessful she feels it would devastate their close family both emotionally and financially. The prospect is something she feels she would not be able to cope with. Her husband and children, she said, are here whole life.
74. Mrs Howard says that Gina has endeared herself to all who meet her, and that she can honestly say she has never heard one person say anything negative about or against her. She understands that Gina has broken the law, but also thoroughly understands the reasons behind it. She acted without thought for herself but only in order to help her parents. She hopes that Gina would be given the opportunity to “right her wrongs” and prove that she is of good character and an asset to the country.
Observations on the evidence
75. The evidence shows that the visa applicant first came to Australia on a passport bearing a false name, date of birth and occupation, endorsed with a fraudulently obtained visitor visa, and presented a false Incoming Passenger Card to migration officials. She intended at all times to work, in breach of the conditions of her (invalid) visa. She was well aware that what she was doing was wrong.
76. The visa applicant could be viewed as one of a class of unlawful non-citizens who take what Deputy President Block has called “the well-trodden path” of entering on a visitor visa obtained through false representations, staying and working illegally, applying for a protection visa on false grounds and pursuing meritless appeals to the Refugee Review Tribunal, class actions and requests for ministerial intervention under s 417.
77. On occasion that procedure is used to buy time while the non-citizen trawls the RSL clubs for a lonely or vulnerable man or woman, often of a certain age, who can be drawn into a relationship that will serve as a basis for a partner visa application. In one case I have seen, there was evidence that a particular migrant group employed spotters to identify potential targets on behalf of undocumented compatriots.
78. In some respects Gina Howard’s case is worse than the usual one, as it involved two false passports, not one, two fraudulently obtained visas and associated documents, and two protection visa applications on fabricated grounds. There is also evidence of a criminal conspiracy with her father to procure the swearing and lodgment of false affidavits in support of her protection visa applications (T pp104, 167). She worked for fully 14 years, all but one month of it unlawfully, and if the department had not detected her she would probably still be doing so (T p357). After conviction for working without permission she continued to work unlawfully to pay the fine for working unlawfully.
79. On the other hand, however, she left Australia voluntarily on both occasions and did not have to be removed by the department. After June 2004 I am satisfied that she did not intentionally make any false or misleading statements in her written applications. That changed approach, together with her second voluntary departure, was probably the result of Ronald Howard’s insistence, but nevertheless those points count in her favour.
80. She did not commit any offences other than her migration law violations or engage in any other form of disreputable conduct. Nor did she maneuver Michael Howard into a relationship. It was he who made the initial social contact that eventually developed into marriage, and that first approach took place over a year after she had first met him and at a time when she was very friendly with Michael’s mother. She must have known that Mrs Howard had an eligible son but made no effort to angle for a meeting. She cannot be accused of the type of callous manipulation described above and indeed does not seem to have maintained even the social diary that one would normally expect to see in a personable young woman. That may, of course, have been one reason why she was able to avoid departmental detection for so long.
81. The visa applicant did not inform Michael Howard that she was present and working unlawfully, even though he obviously had his suspicions and asked her point-blank about her status on one or more occasions. Equally, however, she did not lie to him about her status and indeed suggested he ask his mother, who was aware of the true situation.
82. Mrs Howard did, however, try to encourage Gina to tell Michael herself. Gina’s explanation for failing to enlighten him was that she was afraid of losing him, a fear that must have seemed to have been vindicated when his initial reaction to the truth in June 2004 was one of anger. It is likely that another reason was that she did not want to lose the possibility of a partner visa. While she was not a predator who sought him out for selfish reasons, she almost certainly had mixed motives, including an ulterior motive, for encouraging the relationship to develop.
83. Over time, however, I think her commitment to Michael has become unqualified. Michael’s mother, who has known Gina well for some years, speaks very highly of her qualities and character and stresses that if she did not think Gina was of good character, she would tell her son. His father takes the same position. She was well regarded at work and was repeatedly promoted to the point that she became a team leader in charge of several production lines. The fact that she led a frugal and almost reclusive lifestyle in order to send money back to the Philippines to support her family does not excuse her migration law breaches, but does reflect favourably on her character in a more general sense.
84. It is not uncommon in prospective marriage and spouse visa character cases, however, for people who are otherwise held in high esteem for their personal qualities to engage at the same time in the most unscrupulous conduct in relation to immigration law and procedure. As character in a migration sense must hold a central place in the administration of migration law, laudable conduct in other spheres of life cannot normally compensate for the kind of ruthless and sustained migration misconduct seen in the present case.
85. In this case there is, however, a further factor that makes the circumstances exceptional. That is the way in which the visa applicant has apparently turned around the whole life of a young Australian who seemed irretrievably embarked on a path of self-destruction. As the years from 18 to 25 are recognised as a dangerous period for young men, one might think that the simple effect of the passing of the years might have been responsible for turning the applicant into the balanced and productive citizen that he is today. But his parents, who know him better than anyone else, are both convinced that her influence was at least the decisive, and possibly the sole, factor in drawing him back from the abyss. For that they are intensely grateful to her and wish to do everything in their power to ensure that the couple has the opportunity for a happy life in Australia.
86. I am satisfied that Michael Howard and his parents are sincere and truthful witnesses. I also note that Gina Howard at the hearing freely admitted her knowing breaches of migration law and expressed regret for them. It is of course one thing to admit matters that it would be useless to deny, and something else to display complete candour in relation to matters that are harder to prove. It was noticeable that in response to questions directed to matters of the latter kind, she gave some rather unresponsive and diversionary replies.
Application of the Law and Findings of Fact
87. As stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Gina Howard passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
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. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
88. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Gina Howard does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
89. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), (b) and (c) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law, whether the non-citizen has in connection with the application for a grant of a visa provided a bogus document or made false or misleading statements and whether the non-citizen has made a false or misleading declaration on an approved form about the non-citizens character.
90. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
91. The visa applicant committed the repeated, conscious breaches of migration law outlined in paragraphs 75 and 78 above over a period of 14 years, until she was detained in June 2004. Her contraventions included providing bogus documents and making false or misleading statements, both of which are specifically mentioned in paragraph 1.9 of Direction No 21. She persisted in violating migration law even though she had been prosecuted, convicted and fined for breaches of the Act in 1996. That her motive in accumulating this extraordinary catalogue of violations was to support her needy family in the Philippines cannot be regarded as a countervailing factor.
92. Account must be taken of her recent good conduct in relation to the department since June 2004 and of her good conduct in other areas such as in the workplace and in her relationship with the applicant. But in light of such an egregiously bad migration record, including her evasiveness at the hearing, the only possible conclusion is that her activities indicate contempt or disregard for the law. In my view the visa applicant fails the character test.
93. I must therefore decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to the visa applicant. In exercising this discretion, the tribunal must have regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
94. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, 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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
95. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
96. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
97. The first factor to be considered under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on the tribunal, states in paragraph 2.6(c) that offences against the Act, including “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious.
98. The respondent in her statement of facts and contentions (Exhibit R2) submits that the conduct should be considered as very serious given that using false documents falls within paragraph 2.6 of Direction No 21 and that her conduct potentially amounted to an offence under s 234 of the Migration Act 1958 which attaches penalties of up to $10,000 or 10 years imprisonment. The respondent also submitted that her actions should be considered as very serious given that both her entries into Australia were made in deliberate contemplation of working in Australia (she came on two visitor visas which do not give work rights), and that she made false and misleading statements in furtherance of this principal purpose. Section 235 of the Migration Act provides that a non-citizen who works in Australia without permission commits an offence for which the maximum penalty is a $10,000 fine. The applicant’s representative, in his statement of facts and contentions (Exhibit A1) submits the applicant embarked on her conduct for economic reasons, reasons of family loyalty and out of respect for her late father and that her conduct was to support those who relied on her and not for personal aggrandisement or enrichment.
99. I find the visa applicant’s repeated breaches outlined above, including her convictions for working in breach of her visa conditions and providing false information on her incoming passenger card, are very serious. There could scarcely be a more blatant breach of migration law than procuring two fraudulent passports and visas. Her motives are irrelevant under this heading.
100. Next, the tribunal is to take into account the risk of recidivism in considering the protection of the Australian community. The respondent submits that there is a likelihood of recidivism given her conduct of engaging in immigration fraud on at least two occasions and that it is significant that convictions for immigration related offences and the imposition of fines did not deter the visa applicant from committing the same offence again within four years. The applicant, however, submits that if the visa is granted then it is unlikely that she would have the reason or opportunity to contravene the Migration Act again.
101. The remaining tendency to evasiveness that she displayed in her evidence at the hearing suggests that the possibility of recidivism cannot entirely be discounted. Since June 2004, however, the Howard family appears to have exerted a positive influence on her behaviour in relation to migration law. That influence is likely to continue and make the chances of future migration law violations remote.
102. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). There exists a large body of case law (Re Caruso and Department of Immigration and Multicultural Affairs (AAT 13037, 30 June 1998)); Re Medyanto and Minister for Immigration and Multicultural Affairs (AAT 12453, 28 November 1997)) which describes the fraudulent practices by some Filipinos in their attempts to unlawfully enter and remain in Australia.
103. Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448). The deterrent effect of a particular decision is impossible to measure in advance, but in the absence of exceptional circumstances it is safe to say that exercising the discretion in favour of not cancelling the visa in a case involving such a serious offence as multiple passport fraud would send an undesirable message to non-citizens contemplating, or currently engaging in, criminal activity. In Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, the tribunal, at paragraph 47, described the rationale for that approach in these words:
Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact 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.
104. In some earlier decisions it has been noted that research has shown that in emigrant societies such as the Philippines, there are communication networks conveying information about green cards, work permits, visas and other requirements for settling in the usual host countries (Re Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96 para 29; Re Azar and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061 para 37; see also P Martin, M Abella, C Kuptsch, Managing Labor Migration in the Twenty-First Century, Yale University Press, London 2006 pp 7, 11; D Massey, J Arango, G Hugo, A Kouaouci, A Pellegrino, J Taylor, Worlds in Motion; Understanding International Migration at the End of the Millennium, Clarendon Press, Oxford 2005 pp 42–46, 186–193). Because the flow of information is away from the host country, we tend not to see it.
105. The Philippines has provided many migrants to Australia. As the evidence in this case shows, there is in that country an industry (see Massey et al, supra p61) that assists other Philippine residents to follow in their footsteps, if necessary by means of bogus passports and other documents. Visa refusal in this case could well become known in that quarter through the operation of such a network and might tend to undermine any belief that Australian migration law can be flouted with impunity.
106. In my view the combined effect of the three community protection factors is that this consideration weighs against the grant of a visa in this instance.
Expectations of the Australian Community
107. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
108. As Deputy President Duncan Chappell said in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 at paragraph 84:
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.
109. Normally the community would take the view that a person who procures two false passports and visas by fraudulent means and works for approximately 14 years without permission to do so has forfeited any right to an Australian visa.
110. It has long been accepted, however, that any estimate of community expectations in a particular instance is premised on the assumption that the community is aware of the facts of the case at hand. In the present case, that would mean positing that the community is apprised, not only of Gina Howard’s extremely bad migration record, but also of the role she has, by all accounts, played in Michael’s rehabilitation and the strong bonds that have developed between her and the whole Howard family. That aspect of the case is further discussed below, but for present purposes I note that on balance the community might at least marginally favour exercising the discretion in Gina Howard’s favour.
The Best Interests of the Child
111. There is no evidence that the applicant has any children who would be affected by a decision under s 501(1) of the Act.
Other Considerations
112. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established; the compassionate claims of the Australian partner, including whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the purpose and intended duration of entry, including compassionate circumstances; and any evidence of rehabilitation and any recent good conduct.
113. In this case, a refusal to grant a visa to Gina Howard would not disrupt her own family, all of whom reside in the Philippines.
114. Mr Howard has submitted evidence that the separation from his wife is causing him emotional distress and hardship for which he has sought medical assistance. In his statement of facts and contentions, his then migration agent said he would be “forced into exile” if the visa were not granted. His mental and physical wellbeing, and that of his parents, would suffer severely.
115. While there is no doubt that Mr Howard and his parents will suffer hardship if a visa is not granted, Michael was aware before he married Gina of her immigration misconduct including immigration fraud – it is noted that Mr Howard in his statement dated 17 February 2006 said “When I proposed marriage to Geraldin in Sydney, I was well aware of her problems with Immigration” (Exhibit A3). Mr Eteuati pointed out that his parents knew of her migration status for two years before their son found out about it and argued that although they wanted the best for him they had in fact unintentionally made his hardship worse. The hardship in this case did not warrant overlooking 14 years of deceit.
116. Mr Eteuati also pointed out, quite rightly, that the visa applicant would never have met Michael Howard or become virtually a member of his parents’ family but for the fact that she had come to Australia illegally and had worked illegally at MSA.
117. At the same time, the tribunal must also deal with the realities before it, and the reality in this case is that visa refusal would have a shattering effect on an Australian family.
118. Mr Hurley on behalf of the applicant (and Mr Ronald Howard in his written evidence) stressed that the case was unique because an Australian family is in jeopardy and argued that the family’s compassionate claims should be given substantial weight. The circumstances of the case were exceptional because in the event of visa refusal, three Australians would be hurt, in addition to the visa applicant herself.
119. Clause 2.17 of Direction No 21 twice directs the tribunal to take compassionate claims or circumstances into account.
120. The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 adopted this as a definition of compassion:
The feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour (at p205).
121. Compassion must, however, be distinguished from sentimentality, which is a distortion of compassion, a kind of wilful self-deception that avoids stark choices and hard realities. It can be inegalitarian and condescending, according “favourite victim” status to the person or group that happens to be in the spotlight, at the expense of all others in similar circumstances. It fosters an unwholesome victimology that encourages people to present themselves as sufferers, rather than as self-reliant human beings. One can see that in Ronald Howard’s assertions that Michael is being punished for marrying a person from a different culture while Gina is being punished for being a dutiful daughter, and in his claim that the department is seeking to deny the human rights of the family unit.
122. Compassion, on the other hand, is guided by the common good and keeps in mind the claims of other people in circumstances similar to those of the person or group that is the focus of attention. It does not treat some human beings as more equal than others and does not favour those who may seem superficially more appealing. Compassion does not see its recipients as victims, but as agents of their own destiny who at the start may need a little help from those in a position to give it. It is compassion, not sentimentality, that the legislature and the executive government have directed the tribunal to apply when exercising its discretionary power.
123. I am satisfied that the evidence shows that visa refusal would in this instance impose hardship on three Australian citizens that would be exceptional both in its extent and its severity. That evidence provides an objective reason for treating this application differently from others involving equally serious breaches of migration law.
124. The visa applicant’s extraordinarily bad migration record in this case invokes powerful principles of federal migration law and policy, which benefit all Australians. But in the circumstances of this case, defending those principles on their own would exact too high a cost in Australian casualties.
125. I conclude that the considerations of community expectations, and the other considerations, outweigh community protection factors in this case.
126. The decision under review should be set aside and the application remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of granting a prospective marriage visa to the visa applicant. This is on the basis that the decision will flow through to the later spouse visa application.
I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 15 and 16 May 2006
Date of Decision 31 May 2006
Representative for the Applicant Mr M Seymour
Representative for the Respondent Mr T Eteuati, Clayton Utz Solicitors
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