Re McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 805

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 805

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1960

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOSEPH WILLIAM McCOWLIFF

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date3 August 2004  

PlaceSydney

Decision The decision under review is set aside. The matter is remitted to the Respondent with a direction that the available discretion be exercised in favour of the Visa Applicant.  

[Sgd] R N J Purvis Q.C.
  Deputy President

CATCHWORDS

Immigration –spouse visa – employing disgraced migration advices – representations concocted by advices – Visa Applicant aware of true nature of refugee application – overstays visa – disclosure to future husband – proper advice taken - Visa Applicant marries Applicant and departs Australia – not of good character – relevance of discretionary factors – compassionate grounds - discretion exercised

Migration Act 1958 sections 499, 501

Ministerial Direction 21

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136

Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648

Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766   

REASONS FOR DECISION

3 August 2004            The Hon R N J Purvis Q.C., Deputy President

the application

1.      Mr Joseph William McCowliff (“the Applicant”) married his wife Mrs Maria Lourdes McCowliff (nee Portilla) (“the Visa Applicant”) on 6 April 2001 at which time she was and had been for some period, illegally residing in Australia.  The Applicant was aware of that fact at the time of the marriage.  On advice the Visa Applicant in due course departed Australia and returned to her home in the Philippines.  Two days prior to her departure, the subject application for a spouse visa was lodged with an office of the Minister for Immigration, Multicultural and Indigenous Affairs (“the Respondent”).

2.      The abovementioned application was refused by the Respondent on 19 November 2003 on the ground that the Visa Applicant did not pass the character test.  The available discretion was not exercised in her favour.

3.      In the reasons for its decision a delegate of the Respondent stated (T1/18):

“…

Character Test

53. Mrs McCowliff is deemed to not to pass the character test by virtue of s501 (6) (c) (ii) of the Act… I formed the necessary suspicion that Mrs McCowliff does not pass the character test and that she was unable to satisfy me that she passed the character test.

Discretion

54. I then considered whether to exercise my discretion to refuse the visa of Mrs McCowliff. I proceeded in accordance with Ministerial General Direction Number 21 – “Direction Under s499 Visa Refusal and Cancellation Under section 501 of the Migration Act” (“the Direction”). Accordingly, I gave primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the children. I then considered other relevant considerations in relation to Mrs McCowliff.

…

68. In reaching my decision I concluded that the serious nature of Mrs McCowliff’s conduct and the expectations of the Australian community outweighed all other considerations above.”

the hearing

4.      At the hearing of the application before the Tribunal the Applicant was represented by Mr L J Karp of Counsel and the Respondent by Mr Murray Allatt, a solicitor employed by the Australian Government Solicitor.

5. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were introduced into evidence and marked T1 to T17, S1 to S7.  Written materials tendered on behalf of the Applicant were marked as exhibits, namely:

Exhibit	Description	Date
A	Transcript of interview held in Manila on 22 October 2002 with Visa Applicant
B	Statement of the Applicant, unsworn and undated, subject to verification
C	Statement of the Visa Applicant, unsworn, undated, subject to verification
D	Reference of F T Gillies	7 October 2002
E	Travel Advice Philippines	15 July 2004

Oral evidence was given by the Applicant and the Visa Applicant, the latter by telephone connection with the Philippines, upon which they were each cross-examined.

the issues

6.      The Applicant does not put at issue that on account of the Visa Applicant’s general conduct, she does not pass the character test.  Whilst it is so conceded, the Tribunal will nevertheless make its own assessment of this factor.

7.      Character not being an issue between the parties, the Tribunal is to look to the discretionary factors and the residual discretion to determine whether in light of her character and her related conduct and the primary and other considerations, detailed in Ministerial Direction 21 (“the Direction”), the compassionate ground enlivened by the relationship between the Visa Applicant and the Applicant is such as to outweigh the primary and other considerations relevant to the application.

chronology

8.      On behalf of the Respondent there is set forth in its Statement of Facts and Contentions a chronology of significant events in this matter.  Such chronology with minor changes is as follows:

1944, 3 November              Applicant born in the United Kingdom

1966, 6 August  Visa Applicant born in the Philippines

1997, 21 January                Visa Applicant arrives in Australia

6 February                Visa Applicant lodges protection visa application

7 May   Protection visa application refused by Respondent

1998, 11 February              Refugee Review Tribunal affirms decision to refuse protection visa

15 April Visa Applicant lodges section 417 request to the Respondent

24 JuneVisa Applicant advised that section 417 request unsuccessful

1999, 11 September           Applicant and Visa Applicant meet

24 OctoberApplicant and Visa Applicant commence relationship

2001, 6 April  Applicant and Visa Applicant marry

26 JulyVisa Applicant signs spouse visa application

13 AugustSpouse visa application lodged

15 AugustVisa Applicant departs Australia

2002, 22 October                Visa Applicant interviewed in Manila

2003, 19 November            Spouse visa application refused by the Respondent

legislation and ministerial direction

9. The character of the Visa Applicant within the meaning of section 501 of the Migration Act 1958 (“the Act”) is not at issue in these proceedings. It is, however, desirable for the Tribunal to make its own finding as to character and then to assess the weight to be given to the discretionary factors detailed in the Direction.

10.     The relevant statutory provisions are:

“501     Refusal or cancellation of visa on character grounds

…

(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(6)For the purposes of this section a person does not pass the character test if:

…

(c)       having regard to either of both of the following

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

The person is not of good character”

11. The words “good character” as used in section 501 of the Act “should be taken to be used in their ordinary sense namely a reference to the enduring moral qualities of a person and not to the good standing fame or repute of that person in the community.  The former is an objective assessment apt to be proved as fact where the latter is a review of subjective public opinion” (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94).

12.     It is not necessary for there to be a continuance of the incidence of general conduct.  It is sufficient if incidences of general conduct be displayed but once or twice, thereby laying “the character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142).

13.     The Direction sets out matters to which decision-makers are to have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test.  One factor to be taken into account as here relevant is whether the Visa Applicant has shown contempt or disregard for the law including Immigration Law (para 1.9(a) (b)).  Thus paragraph 1.9(b) requires consideration to be given to :

“Whether the non-citizen has in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement.”

14. If the Tribunal is not satisfied that the Visa Applicant passes the character test the issue for determination, as already indicated above, is whether the decision of the Respondent’s delegate be affirmed or set aside by exercise of the residual discretion under section 501(1) of the Act. In making this determination the Tribunal is to have regard to the above Direction and as here relevant to the following provisions:

“PART 2 – EXERCISING THE DISCRETION

2.1      If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2      The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.24.  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.”

15.     The three primary considerations that must be taken into account by decision-makers are the protection of the Australian community and members of it, the expectations of the Australian community and in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.

16. With reference to the protection of the Australian community, the Direction provides that the factors relevant to an assessment of the level of risk to the community of a non-citizen entering or continuing their stay include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated including any risk of recidivism and whether visa refusal or cancellation may prevent or discourage similar conduct. The Direction in this regard, as with the character issue, makes specific reference to offences relating to the making of false or misleading statements in connection with entry or stay in Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa and prescribes significant sanctions for non-compliance.

17.     The Tribunal has frequently emphasised the importance of the observance of truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement (Grigorian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648 and Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766). It is important to note the emphasis placed on “the observance of truth”.  It is conceivable that false documents and information may be provided without an applicant being aware of the inaccuracy, lack of correctness or falsity.  It is integral to an assessment of character for there to be an appropriate consideration of the state of mind of the person providing a document or information to determine whether the applicant for a visa actively engaged in a stratagem to deliberately mislead immigration officials for the purpose of gaining a benefit or advantage.

“Other considerations

2.17 When considering the issue of visa refusal or cancellation other matters although not primary considerations may be relevant.  It is the Governments view that were relevant it is appropriate that these matter be taken into account but that generally they be given less individual weight then that given to the primary considerations.  These other considerations may include

(a) the extend of disruption to the non-citizens family, business and other ties to the Australian community;

…

(b) genuine marriage to or de facto or interdependent relationship with an Australian citizen, permanent resident or eligible New Zealand children

·     in assessing the compassionate claims of the Australian partner…decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

…

(h) any evidence of rehabilitation and any recent good conduct.

…”

relevant facts and findings of fact

18.     In January 1997 the Visa Applicant, then 30 years of age, arrived in Australia on a tourist visa.  The declared purpose of her visit was to see her brother and his family.  It was not at that time her intention to stay or seek to stay in Australia beyond the term of her visa.

19.     A few weeks into her stay she, liking what she had experienced, expressed to her family and acquaintances a wish to stay longer.  It was they who recommended that she obtain advice from Mr Abel Miranda, an alleged migration consultant.

20.     She visited Mr Miranda in February 1997 and was advised that she “could get a lengthy stay in Australia together with permission to work and access to Medicare” if she lodged a “refugee application” (Exhibit C paragraph 3).  She says that she did not understand what was entailed in making a “refugee application” but did believe that on making the application she would be able to remain in Australia, be able to work and be eligible for Medicare.  The application was written out by Mr Miranda and she was asked to sign it.  The application relevantly contained the following representations (T4, p.62):

“Question: Why did you leave that country?

I left the Philippines because the police suspects that I am involved somehow with the New Peoples Army operations in Cavite.  They believe this fabricated story because of my background as a former student, militant activist in the league of Filipino Students (LFS) and false information/rumour about my (hardware) business supplying materials to NPA members. I immediately arranged to stay with my brother in Australia when last December they harassed me in my own shop trying to fish information and threatening that they will charge me of something or other.

…

Question: What do you fear may happen to you if you go back in that country?

I fear that I will be persecuted for my alleged involvement with the NPAs in Cavite if I go back to the Phils. Because somehow I believe the police will not rest unless they get information.

…

Question: why do you think they will harm/mistreat you if you go back?

I think I will be mistreated if I go back as they just proved that when they visited my shop last December and harassed me and intimidated me with threats.”

21.     The above detailed representations were not true; they were invented by Mr Miranda and printed or written on the form by him.

22.     The Visa Applicant had not provided Mr Miranda with the material to write out the representations.  So far as the Visa Applicant knew, he concocted the representations himself.  In her written statement she says she did not read the handwriting but “simply signed the papers”, finding out about the falsities in the application later.   In her oral evidence, before the Tribunal, she said that she “did not read everything as it was not true”, but signed the documents anyway being, as she says in her written material, “lured to maintain this false position by the prospect of remaining in Australia” (Exhibit C).  The Visa Applicant did not, as she said in her evidence, “really know what was going on”.

23.     Her application for refugee status was refused and on being notified of this she (Exhibit C):

“4…went to Mr Miranda’s office. There were a large number of people in the office, including police, and I saw Mr Miranda being arrested.  This frightened me.

5. A few days later I met a Filipino lady in a similar predicament to myself. She advised me to see another migration in Parramatta. Through him I appealed to the RRT.

6. At the time I was extremely stressed. I was also undergoing medical treatment for lumps on my breast, and I was receiving advice from all directions. Most of it was that I should stay in Australia to take advantage of an amnesty that was said to be coming. I took the easy option and took the advice that permitted me to stay longer in Australia, even though I knew that the statements made in my application were untruthful.

7. After the rejection of my application by the RRT I applied to the Minister for Immigration to be permitted to stay in Australia.  I remained in Australia after that application was rejected.”

24.     The Visa Applicant recognises that on her application being refused she had no right to remain in Australia but says that she was stressed, had little money and “did not know what to do”.  It must be added, however, that she was enjoying her life in Australia and there was little incentive at that time for her to leave.

25.     In September 1999 she met the Applicant, she then being 33 years of age and he nearly 55 years of age.  Neither of them had been married.  An instant attraction developed and in the following months they begun to live together.  It was not until January 2001 that the Applicant proposed marriage and in April 2001 that they married one another in a civil ceremony.

26.     In January 2001 the Applicant and Visa Applicant were together in Adelaide.  The Applicant intended to propose marriage to the Visa Applicant.  At or about that time the Visa Applicant revealed to the Applicant for the first time that she was in Australia without a valid visa.  He says that on hearing this he was “appalled”.  She says that she had not told him previously because she “was scared he will disregard me” and it was only when he proposed marriage that she felt compelled to tell him.

27.     The Applicant advised his fiancée to see Mr Warwick Trantum, a migration agent and seek his advice.  Mr Trantum told them that the Visa Applicant would have to leave Australia and could then make a spouse visa application from the Philippines, which would take not less then 12 months to finalise.  Neither the Applicant nor Visa Applicant wanted to be separated from the other. The Applicant, mistakenly as he admits, believing that there was no urgency encouraged his wife to remain in Australia for a further four months after their wedding prior to her leaving.  The Applicant did not, he said, “want to lose her”.  He was “shocked” and “sad”.  He knew that she would be away from him and out of Australia for at least 12 months.

28.     The Visa Applicant has lived in the Philippines, seemingly with her parents, since that time.  The Applicant has visited her there on three occasions staying for periods of months at a time.

29.     The Applicant and Visa Applicant have now been apart for three years.  She is 38 years of age and he is 59 years of age.  They were not at the time of their civil marriage but are now both members of the Church of Jesus Christ of Latter Day Saints (the Mormons), the Applicant being an ordained Minister and President of the Merimbula Chapter of the Church.  They went through a religious ceremony of marriage, restating their vows in Manila.  They each say that they found their “soul mate” in the other and ask to be allowed to resume living together in Australia.

30.     The Applicant is financially independent, now working as a Minister of his Church but having an interest in a shop business at North Sydney, a home at Merimbula and investments.  He has no need to work for an income and does presently, and will be able in the future to, support his wife.

31.     The Visa Applicant obtained, after five years fulltime study, a qualification in chemical engineering from an institute in the Philippines.  She has, however, been unable to find employment in this profession and has worked as a clerk and in her sister’s shop.  Whilst she was in Australia she worked in a factory.

character

32.     The Visa Applicant was a party to the lodging of an application for a protection visa based on representations which were to her knowledge false.  She had retained as her adviser a Mr Abel Miranda, a man known to the Respondent, according to an admission made by its representative on its behalf at the hearing, since April 1988 to be involved in inappropriate migration conduct which in due course led to his arrest and conviction.  The Visa Applicant was in a foreign country and persuaded to believe that the course she was advised to follow was necessary for her to remain and obtain other benefits.  Still, she knowingly put forward false representations not only to the Respondent but to the Refugee Review Tribunal and to the Minister.  She engaged in employment without consent and this whilst not in possession of a valid visa.

33.     The Visa Applicant did leave Australia, be it a little late, of her own accord and she did, when being interviewed in Manila, answer questions put to her honestly.

34.     Nevertheless a finding that by reason of her general conduct she is not of good character is appropriate in the circumstances of this application.

exercise of discretion

primary considerations

seriousness and nature of the conduct

35.     The nature of the conduct engaged in by the Visa Applicant has been discussed earlier in these reasons.  It was serious in that she was a party to an endeavour to mislead the Respondent by the making of false representations.  She was, however, misled by a dishonest and disreputable person, pretending to act and give her advice as if he was a responsible migration agent.  This does not excuse the Visa Applicant from the consequences of her conduct but it does provide an explanation as to why an otherwise honest and sincere lady should become so involved.

36.     She maintained the pretence consistent with the faulty advice she received.  It was only when the Ministerial discretion was not exercised in her favour that she realised the predicament that she was in.  She had then no one to give her advice and this situation continued up until she disclosed her migration status to the Applicant.

likelihood that conduct will be repeated

37.     There is no likelihood that the Visa Applicant will again become involved in conduct such as that which besmirched her character or conduct of a like nature.  The bonding between the Visa Applicant and the Applicant is real.  The Visa Applicant has expressed genuine remorse and contrition for her behaviour.  Both she and the Applicant are now members of the Mormon faith and have the comfort of their beliefs to ensure that their lives are maintained in an appropriate manner.

38.     Whilst it is true, as was submitted on behalf of the Respondent, that the relevant improper conduct was not “short lived” or “an isolated breach of the law”, it was the misrepresentations that were initially made that continued up until the application for Ministerial approval and this put forward by the persons who were then advising her.  As she said in her letter to the Minister:

“…The application was prepared by Mr A Miranda who represented himself as a migration agent.  He just required me to sign the application forms and assured me that he would fill in the rest and that he would take care of everything. Recently, I learned from my friends that Mr Miranda has been arrested in connection with his immigration activities.  I straight away checked with the Department and the Refugee Tribunal about my application.  I found out that my visa has already expired.  I was sick for several days and almost had a nervous breakdown unsure what my future will be.”

39.     The Visa Applicant worked, believing that she was entitled so to do.  She stayed in Australia without permission but the circumstances of her so remaining relate very much to the relationship that had developed between she and the Applicant.

deterrence

40.      If a visa should now be granted to the Visa Applicant it will only be after she has existed in the Philippines for three years without her husband.  She will have suffered the disappointment of having her application initially refused and the trauma of the current proceedings.

41.     The Respondent maintains that granting a visa to the Visa Applicant “would effectively condone immigration malpractice in the eyes of non-citizens” being “tantamount to rewarding the Applicant for her past conduct”.  In the circumstances of this matter I do not reach this conclusion.  The Visa Applicant acted in accord with the faulty advice she received.  The person who provided the advice has been apprehended and should not be again able to mislead and take advantage of vulnerable people.  It is unlikely that any person would willingly undergo the trauma so experienced by the Visa Applicant.

expectations of the australian community

42.     It is true that the granting of a visa is a benefit and not an entitlement.  However, in all the circumstances of this matter, including the compassionate aspects discussed below, I am satisfied that an informed community would not generally expect a visa to be withheld.

compassionate considerations

43.     The Visa Applicant has genuinely expressed remorse and is sorry for her migration deception.  In her statement she says:

“9.It was hard to leave at that time.  I loved Joe [the Applicant] and we had arranged to be married in early April. Even after that I stayed in Australia for four months before finally leaving.

…

11.My husband and I been separated for nearly 3 years this coming August. Even though he’s visited me here in Philippines several times it’s really hurts us every time he has to leave. It takes a couple of weeks adjusting again to live on my own.  The separation is so stressful it makes me sick sometimes.  Also, I always worry about him because of his hip affliction and I know he needs me in his everyday life as a wife.

12.I am also getting older. On 6 August this year I will be 38 years of age and as a woman I’m also wishing to have a baby. Joe does not want me to get pregnant here in Philippines.

13.I want to start a new life and have family that would never get separated anymore. Life is too short we like our marriage life to become worthwhile. I love my husband and I want to get on in our life.”

44.     In her oral evidence before the Tribunal she acknowledged not leaving Australia immediately after receiving advice from Mr Tantrum but stated that was because of the affection existing between she and her husband. They were then married, he did not want her to go, they had been looking forward to their future and that she knew “he did not want to lose me”.  The Visa Applicant expresses her remorse for her conduct, realises that what she did was wrong and states she has “learned my lesson”.  She further says that it is not possible for her husband to live in the Philippines; last time he was there “he developed a rash over his body”.  She also identifies danger to foreigners and the risk of being kidnapped.  In this regard, heed may be paid to travel advice issued by the Australian Department of Foreign Affairs and Trade (Exhibit E), which acknowledges the risk posed to Australians travelling or spending time in the Philippines.

45.     The Visa Applicant says that if she is able to return to Australia she will obey Australian laws saying “I did not want to get into this situation again”.  I accept the truthfulness of this evidence given by the Visa Applicant.

46.     The Applicant himself says in his written material (Exhibit B)

“5We have now been married for three years and Maria [the Visa Applicant] has been in the Philippines for all but three months of this time. Although I visit her as often as I can the separation hurts me, and I know it hurts her.  We have been separated for most of our married lives, and I feel that Maria has paid sufficiently for her disobedience to Australia’s migration law.

6.This coming November 3^rd I will be 60 years of age and currently awaiting hip replacement surgery. This procedure will take place in Canberra and requires post operative care of a minimum five days stay in hospital. I will need my wife with me as this is a major operation, recovery time is a minimum 2 months.

7.The past few years have been stressful for me, not knowing whether Maria would be able to live with me in my home. It is becoming increasingly difficult to focus on my life and calling without my wife by my side.”

47.     The Applicant, as above mentioned, is in need of surgery.  Whilst having visited the Philippines on several occasions, he feels that he could not live there permanently.  The heat and hygiene are of concern to him; this even so he would be able to support himself and his wife.  He has, consequent upon a recent visit, experienced a skin complaint.  It is further said that there is a present danger to foreigners living in the Philippines, this on account of recent kidnappings and other acts of aggression. 

48.     The Applicant and Visa Applicant wish even at their present ages, to start a family.  The Applicant does not want his wife to have a child in the Philippines.  Having her in Australia “means everything to me. I have a home that is empty”.

49.     It is submitted on behalf of the Applicant that the compassionate factors are such as to outweigh other considerations.  It is submitted that she is in a genuine and continuing marital relationship with an Australian citizen and that her admissions to the interviewing officer in Manila indicated remorse at her past actions as well as rehabilitation.  She is “in fact genuinely remorseful”.  I accept her evidence in this regard. It is further submitted that there is no risk of recidivism, a submission with which the Tribunal concurs. 

50.     On behalf of the Respondent it is submitted by Mr Allatt that the compassionate considerations are diminished by the conduct of the Applicant as he became aware of his wife’s illegal status at or about the time when he proposed marriage.  Notwithstanding this knowledge he proceeded to plan their marriage but “not before obtaining advice from a solicitor/migration agent that on the evidence the Visa Applicant had to leave Australia”.  The Applicant was aware when he married the Visa Applicant until the time of her departure that she was illegally in Australia.

submissions and decision

51.     On behalf of the Respondent it was submitted that even be it the Respondent was well aware by April 1988 of “Miranda and his activities” that a degree of responsibility is to be born by the Visa Applicant.  She, as it was put, “knew what it was about when she came to sign the application…she basically maintained the falsity for most of the period …she stayed in Australia for eight months after obtaining advice”.  This is undoubtedly true but the Tribunal is mindful of the factors relevant to her conduct as earlier discussed in these reasons.

52.     It is further said on behalf of the Respondent that, being a case of people later in life marrying, by the time the Applicant came to propose to his wife, he “had become reluctant to accept the truth”. This again may well be true but as I see it, it is again a factor to be taken into consideration in the totality of the relevant circumstances. There is minimal likelihood of the Applicant moving to the Philippines to there reside with the Visa Applicant.  The factors pertaining to his physical welfare preclude this possibility. 

53.     I am satisfied that on the evidence the Visa Applicant was, as submitted on behalf of the Applicant, “overcome by temptation and took the offer of the agent and his advice”.  The agent was in due course apprehended, charged and convicted.  The Visa Applicant fully realises her mistake and has expressed genuine contrition.  She has expressed a sincere desire to live with her husband and “settle down with a family”.  There is evidence before the Tribunal from a Mr F T Gillies, a Justice of the Peace and a Minister of Religion, as to the good standing of the Applicant in his community.

54.     In all the circumstances of this application, I am satisfied that the compassionate factors as detailed earlier in these reasons are such as to outweigh the weight to be given to the primary and other considerations.  This does not minimise the seriousness of the Visa Applicant’s conduct.  But I am satisfied that more recently her conduct has been such as to indicate a genuine remorse for her earlier behaviour, a regret and a genuine desire not to repeat the mistakes of her past.  So far as rehabilitation is relevant, she is rehabilitated and her recent conduct as evidenced before the Tribunal has been good. 

55.     For the reasons herein before set forth, the decision under review is set aside. The matter is remitted to the Respondent with a direction that the available discretion be exercised in favour of the Visa Applicant.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

Signed:         A. Krilis
  Associate

Date/s of Hearing  15 July 2004
Date of Decision  3 August 2004
Counsel for the Applicant              Mr L J Karp
Representative of the Applicant                Mr W Trantum
Solicitor for the Respondent          Mr M Allatt