Re Santos and Minister for Immigration and Multicultural Affairs - [2000] AATA 567

DECISION AND REASONS FOR DECISION [2000] AATA 567

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1570

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RAYMUNDO SANTOS
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date10 July 2000
PlaceSydney

Decision The decision under review is affirmed.

..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 309 (spouse) visa – citizen of the Philippines – not a person of good character – past and present general conduct – lodgement of application for protection visa – application false – application refused – request for ministerial intervention – request refused – allegation of fraud and malpractice on the part of the migration agent – consideration of other general conduct – doubts about relationship - consideration of exercise of Tribunal's discretion – consideration of the protection of the Australian community - consideration of the expectations of the Australian community – need to send a strong deterrent message – consideration of the effect of the separation on the applicant – acknowledged emotional hardship – decision affirmed
Migration Act (1958) s501
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780
Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, & May 1997)
Irving v Minister for Immigration, Local Government and Multicultural Affairs (1996) FCR 422
Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187
Bie and Migration Agents Registration Board (AAT 12418, 25 November 1997)

REASONS FOR DECISION

Dr D. Chappell, Deputy President

BACKGROUND
Application and Hearing

This is an application by Mr Raymundo Santos (the review applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to refuse to grant to his wife, Ms Leonora Santos (the visa applicant), a subclass 309 (spouse) visa. The refusal was based on a finding that Ms Santos was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Ms Kristina Desipulo, a migration agent, represented the review applicant at the hearing. Both Mr Santos and his wife gave personal testimony to the Tribunal. The following witnesses also testified on behalf of the applicant:
Reverend Nomer Velasco
Mr Frank Panucci
Mr Denis Hurley and Ms Paula Chadderton, departmental advocates, represented the respondent. No witnesses were called to give personal testimony on behalf of the respondent.
The Tribunal had before it documents and supplementary documents filed for the purpose of s37 of the Administrative Appeals Tribunal Act 1975 (the T and S documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No.     Description    Date
A1      Letter from Panucci Group Pty Ltd           13/10/1999
A2      Letter from Faith in Christ Fellowship     12/10/1999
A3      Two photograph albums
A4      Mr R. Santos' flight details December 1999 January 2000
A5      Photograph of three individuals with Opera House in background
A6      Log book
A7      Three photographs
A8      Map
A9      Email 16/2/2000
A10     Letter from Uniworld Migration Services to Administrative Appeals Tribunal           27/3/2000
R1      Original file of applicant's protection visa application – Part B (original of T: 86-109)
C1      Migration Agents Registration Board Certificate of Registration of Lucita Bie as a migration agent 10/12/1997
C2      Facsimilie from Australian Communications Authority to Lucita Bie   18/5/2000

In addition to these exhibits, and the T and S documents, the Tribunal also received personal testimony and exhibits (see C1 and C2 above) relating to allegations which arose during the course of the hearing about the conduct of a migration agent, Ms Lucita Bie. The circumstances which led to this testimony and to the production of these documents, and related submissions made about them by both of the parties, will be described in more detail later in this decision.
Circumstances Leading to the Visa Refusal
The following facts, and chronology of events, which led ultimately to the refusal by the respondent of the visa sought by Ms Santos were not in dispute between the parties. Ms Santos was born in Cabuliga-Ansto Nino, a town in the Province of Samar in the Philippines, on 8 February 1971. She grew up with her family in the Philippines and completed her secondary education in that country. She also obtained a tertiary qualification as a medical secretary at the Martinez Memorial College in Kalookan City (see T18: 151-153). After completing her education Ms Santos worked for a short period as a nursing aid and then as a legal secretary for a Philippino law firm (see T: 154 and S: 13).
In 1995 Ms Santos left the Philippines to go to Sweden to stay with a sister who resided in that country. She was granted a residence permit valid for one year by Swedish authorities at Goteborg in February 1995 (T: 179). Early in 1996 Ms Santos was granted a visitor's visa to enter Australia by the Australian Embassy in Stockholm (T: 180). The visa prohibited work or study by Ms Santos in Australia, permitted her to remain in the country until 7 November 1996, and allowed multiple entries.
Ms Santos first arrived in Australia on 7 February 1996. On 14 June 1996 she left the country to return to the Philippines. On 8 July 1996 Ms Santos re-entered Australia and on 10 October 1996 she applied for a protection visa (866) and associated bridging visa (see T7, T8). In her protection visa application, in a section of the form asking for the reasons to be stated why protection was being sought in Australia, the following handwritten statement was provided:
I left my country because I felt my life was in danger. I was the President of the social group named Livelihood Program Society which aims to gather goods and money to help the most needy in our community, for this purpose we increase awareness among the community raising money in various ways to fund our program and help the poor.
In the course of my involvement with this society I could not help making many enemies from various government authorities because I have accused them of dishonesty and incompetency, neglecting the wellbeing of the destitute people in our society. Because of my condemnations I raised the anger of this functionaries which all banded together against me to silence me forever. I was made aware of this threat to my life by one of their bodyguards who took a fancy on me.
After this tip-off I realised I was in mortal danger and decided to leave the Philippines to seek help from my sister.
I fear that some real danger may come from those government officials because they regards me as a political risk for their career.
(T: 103-104)
The protection visa application form also contained the following declaration signed by the applicant:
I declare that:
·     The information I have supplied on or with this form is complete, correct and up-to-date in every detail.
·     I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
·     I understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia by way of this application.
·     In accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Ethnic Affairs of any changes to my personal circumstances (e.g. marital status, changes to the family composition) while my application is being considered.
·     I undertake to inform the Department of Immigration and Ethnic Affairs if I change my address for more than 14 days while my application is being considered.
·     I authorise the Australian Government to make any enquiries necessary to determine my eligibility for permanent stay in Australia, and to use any information supplied in this application for that purpose.
·     I have read and understood the information supplied to me in this application.
WARNING: The provision of false or misleading information in this Declaration is subject to penalties under the Migration Act 1958.
(T: 109)
On 17 December 1996 a decision was taken by the respondent to grant Ms Santos' application for a bridging visa with a right to work while this bridging visa was in effect. This decision was conveyed in writing to Ms Santos and she was also provided with information about the conditions associated with this type of visa (T10). Ms Santos was subsequently advised by the respondent's officials that she could attend an interview to support her application for a protection visa. This invitation was declined and a request was made for the application to be assessed on the information already provided (T11).
On 12 April 1997 the respondent refused Ms Santos' application for a protection visa and advised her of this decision in writing (T12). Ms Santos was also advised that she could apply to the Refugee Review Tribunal (RRT) for review of the refusal. The reasons given for the refusal by the Minister's delegate included the following statement:
3.4.1The applicant declined the invitation for her to be interviewed. For this reason, details of her claims specially those relating to the persons who plotted to harm her could not be clarified.
3.4.2The reports on the Philippines indicate that freedom of speech is respected in that country and that citizens freely criticise the government and its officials without serious reprisals. Furthermore, the applicant indicated that she worked for a number of lawyers in the Philippines. This indicates to me that she can access their help in seeking legal and other protection against any harm brought about by her exercise of her freedom of speech.
3.4.3I also note that the applicant returned to the Philippines and stayed for a month after her initial arrival in Australia. This casts doubts on her claims that she fears for her safety if she were to return to the Philippines.
3.4.4After considering all the evidence on hand, I do not consider that the applicant has a real chance of being persecuted if she were to return to the Philippines
(T: 130).
On 15 May 1997 Ms Santos sought review by the RRT of the refusal to grant her a protection visa. The reasons provided in this application for review stated:
I completely disagree with the case officer because he failed to recognise that I am a woman at risk and if they send me back I will be putting my life in serious danger for revenge and to set an example to other people like me.
(S: 64)
The review application form also contained a statutory declaration by the applicant, witnessed by a Justice of the Peace on 29 April 1997, that she did:
… solemnly and sincerely declare that the information provided in this application is correct and complete. I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties provided by the Act for making false statements in Statutory Declarations, conscientiously believing the statements in this declaration to be true in every particular.
(S: 64)
On 17 December 1997 the RRT conducted a hearing in Ms Santos' case (S1). Ms Santos, and her brother-in-law Mr Panescia Andersen, gave sworn testimony to the Tribunal and Ms Santos also provided the Tribunal with a written statement (S: 56-57). In her testimony Ms Santos admitted to the Tribunal that the claims contained in her original protection visa application were false and had, she said, been fabricated by an immigration agent named Ms Lucita Bie (S: 14-20). In her written statement Ms Santos said, in part, the following about the filing of her original protection visa application and the circumstances surrounding her departure from the Philippines:
The true reason I wanted to leave the Philippines is yes, I was in fear of my life but not by any political Organization. I did not apply for Refugee status in the Philippines … myself and my family only wanted me to get away from there for a while hoping the problem would stop. I only applied for a tourist Visa to Australia and Sweden where I have family to stay with just to get away for a while. The problem started on the 11th month of 1994 when I was walking home from work and was approached by a man and he grabbed me. I screamed, being near my home my father heard me and ran out and pounded him in the mouth. The man plead and we were not expecting anymore to come of this. Until I was being followed to and from work and other places by the same man and other man also. A later found out … people where [sic] a member of a gang. … occassions [sic] we were threatened by … people. My father not afraid of them but was very worried about me and the rest of my family …following. As the situations became critical my relative in Sweden and Australia tried desperately to bring me to their country as they were in the positions to support and care for me. I was granted a Tourist Visa to Australia where I stayed with my eldest sister and Bro-in-law. I was happen just to be away for a while. I did try to apply for residency but found out. Its [sic] was very difficult. I was then advised that under my circumstances that I may be eligible for Refugee Status and was given a phone No. of an agent whom I was told was very good in helping people in my situation. But, the story given by the agent is nonsense and now I realized why I was never given any paper work and I was told I should not attend the tribunal and that I should just wait for the results by mail. That is when I questioned what is going on. I then requested all the paper] work from the Immigration Department myself which I received yesterday. I honestly knew nothing of this story about my reason for this application. I guess that the agent has looked at true story and thought that it was not a good enough reason to apply for Refugee Status so they have completely change [sic] it, except for the fact that my life had been threatened. During the time I have been in Australia my father had been attacked and shot dead and this is going … the court system at the moment. This I can prove but not without Documentation from the Philippines which may be hard to obtain until the trial is complete. So I please ask that you understand my fear for Returning to my Country.
(S: 56-57)
On 15 January 1998 the RRT affirmed the decision not to grant Ms Santos a protection visa (T13). On 6 February 1998 Mr Adrian Joel, a solicitor acting on behalf of Ms Santos, wrote to the Minister requesting that he exercise his discretion under s417 of the Act in favour of Ms Santos. Mr Joel, in his letter to the Minister, referred to the material which had been considered by the RRT including the claim that an immigration agent had concocted the circumstances contained in her original application. Mr Joel's letter also noted that:
Ms Biacolo requests Ministerial intervention based upon the level of integration she has achieved whilst awaiting a decision on her Protection Visa application. She also seeks to have the Minister consider the murder of her father as a matter deserving of compassion. She remains fearful of returning to the Philippines if only because her father's murder remains unsolved. By way of contrast, Ms Biacolo has successfully sought employment opportunities whilst in Australia. In this regard, please find enclosed a reference provided by the Managing Director of Panucci Group situated in Chester Hill which indicates that Ms Biacolo has proven to be a loyal, honest and hard-working employee.
Our client is a member of the congregation of the Born Again Christian group located in Macarthur where she worships in community every Sunday. She is a member of the Music Ministry of this church. She has family in Australia (an elder sister) with whom she has maintained contact.
Our client perceives that she will endure significant hardship where [sic] she to return to the Philippines at this stage of her life. On her behalf we request a sympathetic yet compassionate assessment of her request.
(T: 143)
On 11 August 1998 the Minister declined to exercise his discretion under s417 of the Act. Mr Joel was advised of this decision by a letter dated 3 September 1998 (T17). In October 1998 Ms Santos became engaged to marry Mr Santos. On 20 October 1998 Ms Santos left Australia and returned to the Philippines (S: 66). On 16 December 1998 Ms Santos lodged an application for migration to Australia (T18). On 9 January 1999 Ms Santos married Mr Santos at a ceremony held in the Philippines (T: 168) and on 11 January 1999 Mr Santos lodged an application to sponsor his wife's migration to this country (T19).
On 14 September 1999, after the visa applicant had been interviewed by Australian immigration officials in Manila, the Minister's delegate Ms Sally Reay-Young, refused Ms Santos' application for a spouse visa on the grounds that she failed to meet the character test within the meaning of s501 of the Act (T31-32). In reaching her decision the Minister's delegate made the following assessment about Ms Santos' case:
12.I have taken into account the following considerations in assessing the past general conduct of Ms Leonora Santos:
·     She freely admitted to knowingly providing false information in her application for a PV;
·     She knew and has freely admitted that in lodging the PV application she was wrongly applying for Australia's protection as a refugee;
·     She freely admitted that she did not consider she was a refugee at any time prior to the lodgement of her PV application or, at any time during the processing of her application;
·     DIMA and the Refugee Review Tribunal (RRT) contacted her in writing on a number of occasions advising her that she was an applicant for refugee status;
·     Notwithstanding the proceeding [sic] fact, she did not advise DIMA or the RRT at any time during the processing of her PV application, or at any other time, that her claims for protection were bogus;
·     Ms Santos freely admitted that the sole purpose for applying for a PV was to extend her stay in Australia for as long as possible so she could legally work under the provisions of a Bridging Visa associated with her PV application.
13.I have taken into account the following considerations in assessing the present general conduct of Ms Leonora Santos:
·     Ms Santos is married to her sponsor Mr Raymundo Santos. The relationship appears to be genuine.
·     Ms Santos stated that she was [sic] knew she had been dishonest and was sorry for her actions in Australia.
14.I find that the applicant, by applying for a PV on bogus grounds and securing work rights under a Bridging Visa, was successful in her attempt to extend her stay and work in Australia. I find the applicant sought and gained entitlement under Australia's immigration laws she otherwise would not be entitled to.
15.I find that Ms Santos was not truthful in her dealings with the department with respect to her application for a PV. I have taken into account that significant resources were deployed to resolve Ms Santos's [sic] status in Australia. Notwithstanding Ms Santos's [sic] apparent remorse for her actions, I find that Ms Santos's [sic] general conduct demonstrates a blatant disregard for Australian immigration law.
16.Having regard to Ms Santos's [sic] past and present general conduct in Australia and based on the evidence before me I find that Ms Leonora Santos is not of good character in relation to her past and present general conduct and as such fails to satisfy me that she passes the character test.
(T: 247-248)

On 13 October 1999 Mr Santos lodged with the Tribunal an application for review of the decision to refuse to grant his wife a spouse visa (T1).
LEGISLATIVE AND POLICY PROVISIONS
In order to be granted a subclass 309 (spouse) visa the applicant must satisfy the relevant public interest criteria, including item 4001 in Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under s501 of the Act to refuse to grant a visa.
Section 501 of the Act provides:
(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 or both of the following:
(i)        the person's past and present criminal conduct;
(ii)       the person's past and present general conduct
          the person is not of good character;
Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction was given by the Minister under s499 of the Act on 16 June 1999 titled "Visa Refusal and Cancellation under Section 501 – No.17" (the Policy Direction: T5). The Preamble to the Policy Direction states, in part:
This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.
The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.
(T5)
Reference will be made later in this decision to those provisions of the Policy Direction which are relevant to the Tribunal's consideration of the present matter. Mention must also be made of the Migration Series Instructions (MSI) No.254 ("the character requirement: visa refusal and cancellation under s501 - MSI 254") which was issued on 20 September 1999 and provides guidance to decision makers in making decisions to refuse or cancel a visa under s501 of the Act (see T4). The MSI notes that decisions concerned with the refusal of a visa are to be dealt with in a two staged process:
·first: the non-citizen does not satisfy the decision-maker that he or she passes the Character Test; and
·second: the decision-maker considers whether to exercise his or her discretion.
(T: 49; MSI paragraph 4.1.2)
In relation to decisions under s501(6)(c) of the Act the MSI contains the following guidance:
4.7.1Paragraph 501(6)(c) is concerned with cases that involve the delegate making a finding that a non-citizen is 'not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. For the purposes of the Character Test, criminal conduct means conduct that is punishable by law and has actually been punished by a conviction for an offence. All other conduct, both good and bad, including conduct that may be a crime that was never prosecuted, where no conviction was recorded or the non-citizen was acquitted, is treated as general conduct. Criminal conduct is a subset of general conduct, but is set out in subsection 501(6)(c) separately from general conduct as it is convenient for the purposes of categorisation and analysis when determining whether a person is not of good character. The factors that are relevant to making a finding that a non-citizen does not pass the Character Test on this ground, together with the factors to consider once discretion is enlivened, following any finding that a person does not pass the Character Test, are contained in the s499 direction.
4.7.2Consistent with the s499 direction, a persons [sic] is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the person

resulted in offences that are the subject of charges but are not resolved pending a hearing or trial; or
resulted in the person being acquitted of a criminal offence or where there has been no conviction recorded. The following are examples of past conduct where there has been no conviction or where the person has been acquitted:
-the conduct was never prosecuted (for example the charges were dropped), resulting in no conviction being recorded;
-the person was found guilty of a charge but no conviction is recorded on the basis of previous good conduct, or the offence was treated as 'one-off' offence and out of character;
-the person was acquitted of a serious offence, such as sexual assault, drug related offences, or murder, but evidence is subsequently produced that the person committed the offence. For example, the evidence may have been produced at trial proving that the person has committed the offence but the evidence was rejected for technical reasons or the evidence was not disclosed until after the trial; or
·offences that are likely to have been committed by the person for which the person has not been convicted, but which were taken into consideration by the court (usually following admission by the person) when the person is sentenced for another offence.
4.7.3 In considering such conduct, delegates should distinguish legal technicalities from the proper consideration of a non-citizen's conduct for the purpose of making a visa refusal or cancellation decision. For example, although the rule of 'double jeopardy' prevents a person being brought to trial in circumstances where the person has previously been acquitted of substantially the same offence, s501 decisions are concerned with the person's actual conduct, so an acquittal by a court cannot be conclusive of good character.
(T: 55-56; paragraph 4.7.1-4.7.3)

Thus the issue which the Tribunal must determine is whether or not Ms Santos satisfies the character test for the purposes of s501(6)(c)(ii) of the Act. If the Tribunal determines that Ms Santos does not meet this test then it may nevertheless exercise the discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Ms Santos. Attention is now turned to the evidence presented concerning Ms Santos and the application of the character test under s501.
EVIDENCE
Past and Present General Conduct
It was the general contention of the respondent that Ms Santos did not pass the character test pursuant to s501(6)(c)(ii) of the Act on the basis of her past and present general conduct. Paragraph 1.9 of the Policy Direction has the following to say about the way in which decision makers should apply the character test under this particular head:
1.9In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
(T4: 23)

The Policy Direction also indicates that:
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indication that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).
(T4: 24)
In both its Statement of Facts and Contentions, and the presentation of its case at the hearing, the respondent indicated that it was principally paragraph 1.9(a) and (b) of the Policy Direction which were most relevant to Ms Santos. The applicant did not contest this assertion but contended that there were countervailing factors which would justify a finding by the Tribunal that Ms Santos did meet the character test.
Protection Visa Application
The claims that were made by Ms Santos in her protection visa application have already been described. In her personal testimony to the Tribunal Ms Santos acknowledged that she had come to Australia on a visitor's visa which did not allow her to work. She had sought the assistance of Ms Lucita Bie to obtain a working permit. She said that she did not realise that the application that she had lodged was for a protection visa. Ms Bie had given her a blank form to sign. She had not had an opportunity to look at this form and had also not signed any authority for Ms Bie to act on her behalf. She had also given her no receipt for the money that she had paid.
Ms Santos said she had been amazed when she was advised by a letter from DIMA that she had made an application for a protection visa. She had called her agent and had been told not to worry and that this was the only way that she could obtain a work permit. Ms Santos said she was not happy but all she wanted to do was work. When her application was refused by the Minister's delegate her agent again told her not to worry and said that she could then apply to the RRT. When she received a letter from the RRT inviting her for an interview Ms Bie had told her not to accept this invitation. However, Ms Santos said that she decided to do so anyway and then requested a copy of her file from the respondent's officials and then found out that there were statements in her application which she had not made and which were untrue.
Ms Santos said that she had prepared a written statement to give the RRT. She had not mentioned to Ms Bie any of the material in that statement about her family problems and the threats made to her and her father. The statement or story in this written document was true. She had hoped to clarify the situation and still be allowed to remain in Australia. Ms Santos said that her agent had told her nothing about the consequences that might follow by lodging a bogus refugee application. She realised that maybe she was doing something wrong with her application form but only found out what had actually happened when she obtained the file from DIMA (see in general transcript 9 February 2000: 48-56).
Ms Santos was subjected to an extensive cross-examination by Mr Hurley (see in general transcript 9 February 2000: 56-71; 10 February 2000: 90-98). Ms Santos denied that it had been her intention from the outset to come to Australia to obtain work. She had been given Ms Bie's name by her sister's friend. She had only met Ms Bie in person on one occasion and this was when she had gone to her house "somewhere in Bronte or Parramatta". She had been accompanied on this occasion by her sister, her friend who knew Ms Bie, and her sister's husband. She did not know the name of her sister's friend. Ms Bie had given her a piece of plain paper on which to write her name and other details. She had paid her $1500 and had not received any receipt. She had not filled out any forms herself. Ms Santos denied in particular that it was her handwriting on the forms lodged for the protection visa and associated bridging visa. She also denied that the signature which appeared on the declaration contained in the bridging visa application was hers (see T: 116; transcript 10 February 2000: 91). Ms Santos said, however, that it was her signature which appeared on the protection visa application (see T: 96, 109). She also denied having filed either of these documents in person although the receipts that had been provided with these lodgments showed that they had been lodged by her.
Ms Santos said that she only realised that she had made a mistake when she had been told by Ms Bie that she should not go for an interview with the Minister's delegate who was considering her case. She said that the letter which had been sent declining to go to that interview had been prepared by her agent but that she had signed it.
The Tribunal also asked Ms Santos a number of questions including why she had sought Ministerial intervention on her behalf following the RRT rejection of her application (see transcript 10 February 2000: 105-106). Ms Santos said that she had been hopeful that it would be possible to extend her stay by making this request to the Minister. She had also told Mr Joel the real story about her father's death. The Tribunal then asked Ms Santos to explain what that story was and the following exchange then took place:
What is that story again?---I just - I talked to them to add change over of how my father's died, of what happened to us here, you just - I don't mention to that agent and that's why I was afraid when she make statement which is irrelevant.
Sorry, did you tell the agent about - you say you did not tell your agent about your father's death?---I did - I did not, sir, I did not mention this or the agent - the agent of what happened to us or my father and - here in our country.
Could you just tell me what did happen to your father?---My father was shot by someone which is until now we having a - we have a case hearing. The case is not solved until now and the guy who shot my father is on bail. He's on bail at the moment and I told - I talked to Adrian even in my letter that because my father was - intervened or not exactly intervened, protected me, because of my - because of my father one time somebody got me and my father heard my scream and we – my father, he doesn't know what the real … and then he just come and see - and he hit the guy who grabbed my hand and then - then after a year I don't exactly know because there's - I don't know what exactly happened because after a year, while I was here in Australia, we received a long distance call that my father - hello?
Yes, I can hear you?---Yes, sir. That my father was shot by the man and we know that guy personally. They just only live in, here in our - you know, we have the same province.
So, I understand you correctly, your father was actually killed while you were in Australia?---Yes, sir.
(transcript 10 February 2000: 106)
It was then when you left and went to Sweden?---No, sir. My father, he got shot in the year of 1996 and I left from - I left from … going to Sweden 19 - November 1995 - and from Sweden I went in Australia and after - you must stay here and we got the call, long distance call that - the time my father was shot, that's why I went home.
Did you leave the Philippines to avoid this gang?---Sir, this is part of my fears because these gangs - I can - it's very hard for me to explain, sir, because there is personal - there is a personal argument between my father and that gang. Not exactly gang or that is - anyway we can call it gang because, the person who - who shot my father is one of these - hello.
Yes, I can hear you?---There is - there is another involved person, involved person - and the person who shot my father - and because of my mum's fear and maybe they will come back and attack us once again because my father is already passed away and they don't have any … because: we're only a girl and we are - my younger brother is very young so at that time we just - my mum told me that: stay in Australia for awhile and then - that's why I come back and not my intention to come back here and apply for the PV because I don't exactly know that there is a ground that you can apply for that for people a visa and I don't exactly know that there is any way that you can have - that you can pick up protection visa, I don't know about it.
(transcript 10 February 2000: 110)

Other General Conduct
Relationship

In its Statement of Facts and Contentions the respondent submitted that the visa applicant's relationship with Mr Santos was not genuine and was further evidence of general conduct which was relevant to the issue of whether or not she was of good character (see Statement of Facts and Contentions: paragraphs 20-25). The review applicant, Mr Santos, said that he had first met his future wife at a church fellowship meeting in about February 1997 shortly after he himself had arrived in Australia. He had gone out with Ms Santos in company with other friends from the church but their relationship only began to develop on a more personal basis in the middle of 1998. Mr Santos said that he was aware that Ms Santos was in the country on a bridging visa but he was not aware that she also had applied for a protection or refugee visa. When their relationship had become deeper he had proposed marriage to her but she had not accepted immediately. That acceptance did not come until October 1998. They had decided to get married in the Philippines following Ms Santos' return to that country. He had flown to the Philippines on 19 December 1998 and had got married shortly afterwards and then returned to this country on 16 January 1999. He had not believed there would be any problem with their respective applications for Ms Santos to then migrate to Australia as his wife. He had only become aware of the nature of these problems following the rejection of the visa by the Minister's delegate (in general see transcript 9 February 2000: 24-29).

Mr Santos was cross-examined about his relationship with Ms Santos. He said that he became aware that she might have some problem with her immigration status early in 1998 when she said that she was no longer able to work. However, he did not know what the nature of this problem was and they had not discussed any difficulties that Ms Santos had encountered with migration agents. He was aware that Ms Santos was going to have to leave Australia prior to proposing marriage to her in October 1998. He had not lived with his wife prior to their marriage in January 1999.
During the course of the cross-examination, by Mr Hurley, Mr Santos was also asked to identify whether or not certain handwriting was that of his wife. He said that the handwriting in the protection visa (866) application (T7) was not that of his wife although it was his wife's signature (T:96; transcript 9 February 2000: 32-34). Mr Santos said that it was his wife's handwriting, and also his wife's signature, on the bridging visa application (T8). It was also his wife's handwriting on the statement that had been furnished to the RRT (see S56-57).
Mr Hurley suggested to Mr Santos that in fact his wife had only married him in order to come to Australia. Mr Santos said that he did not believe this to be the case. He admitted that Ms Santos has not been particularly interested in him up until July 1998. Their relationship had become much deeper in September and he had proposed in October and she had accepted his proposal. He was not aware that Ms Santos was going to have to leave Australia until September.
In the course of her personal testimony to the Tribunal, and when cross-examined by Mr Hurley, Ms Santos confirmed that she had met her future husband at a church social in February 1997. She said that they had gone out together in a group and that he had proposed to her in July 1998 and then their relationship became different. The proposal of marriage which she had accepted had only come in October 1998 at a car park in a Kentucky Fried Chicken parking lot (see in general transcript 9 February 2000: 63-69). Ms Santos said that she had not told her husband everything about her immigration situation. She could not be precise about what she had told him but said she had mentioned that she had a protection visa. She had not told him about Lucy Bie until after they were married. She had also told him then the whole story about her immigration problems. Ms Santos admitted that she had become aware that she would have to leave Australia in August or early September 1998 after the refusal of the Minister to intervene on her behalf. Ms Santos denied that she had only got into a deeper relationship with Mr Santos after receiving this news.
Other Character Witnesses
Two witnesses gave personal testimony on behalf of the applicant in regard to their knowledge of Ms Santos' character. Reverend Nomer Velasco, an ordained Minister of the Four Square Gospel Churches in Australia and a Senior Pastor of Faith in Christ Fellowship, Macarthur, said that Ms Santos had been a regular and most active participant in the activities of this church. He described her as having a most pleasant personality and believed her to be a person of good character. He had no knowledge of her application for a protection visa, nor of the reasons why she had originally come to Australia. He was only aware of the difficulties that Ms Santos had when her visa was refused. It was his understanding that Ms Santos had been naive enough to rely upon a migration agent and that this explained her conduct (see in general transcript 9 February 2000: 11-19; 82).
Mr Frank Panucci, the managing director of a group of companies which included one where Ms Santos worked during the period that she was in Australia, told the Tribunal that Ms Santos had been a very popular worker and he would re-employ her if she were to come back to Australia. He had not been aware of the migration problems that she had (see transcript 9 February 2000: 19-24; A1).
Evidence of Migration Agent Ms Lucita Bie
As is apparent from the evidence that has been reviewed above it was alleged by Ms Santos that she had been assisted in a number of ways by a person she named as Ms Lucita Bie. During the course of the hearing the Tribunal was advised by the parties that a person by this name was listed as a registered and practising migration agent in Sydney. On 10 February 2000, after both the applicant and respondent indicated that they had completed the presentation of their evidence to the Tribunal, the Tribunal queried whether Ms Bie should also be called as a witness (see transcript 10 February 2000: 126-130). The parties indicated that they felt that this was a matter for the Tribunal to determine. After receiving these submissions the Tribunal indicated that in view of the serious allegations of immigration malpractice made against Ms Bie by Ms Santos, and the relevance of these allegations to the case, it would issue a summons for Ms Bie to appear to give evidence before the Tribunal at a time to be determined.
On 2 March 2000 the hearing of this matter resumed and Ms Lucita Bie appeared in person in response to the summons that had been issued. Ms Bie was represented at the hearing by Mr Peter Bollard, a solicitor (see in general transcript 2 March 2000: 2-5). Mr Bollard told the Tribunal that he had advised Ms Bie of her rights and obligations and that she had appeared before the Tribunal in order to have an opportunity to resolve the matter by giving her personal testimony. The Tribunal also advised Ms Bie that she was not obliged to answer any questions that she and her legal adviser felt might be incriminating in some way. Following this caution Ms Bie then proceeded to be asked a series of questions by Ms Desipulo on behalf of the applicant; by Mr Hurley on behalf of the respondent; by the Tribunal; and also by Mr Bollard (see in general transcript 2 March 2000: 5-25).
During the course of her personal testimony Ms Bie indicated that she had been registered for the first time as a migration agent on 10 December 1997 (C1). She had not been eligible to nor had she practiced as a migration agent prior to that registration. During 1996 she had been residing at a residential address in Waverley. When shown a photograph of a person who was said to be the visa applicant, Ms Santos, Ms Bie said that she had never seen this person before (see A5: transcript 2 March 2000: 10-11). Ms Bie also denied having completed the applications for a protection visa and bridging visa on behalf of Ms Santos. She further denied having lodged any such applications, and also having received any fee from Ms Santos.
The Tribunal asked Ms Bie a number of questions about the circumstances surrounding her registration as a migration agent. Ms Bie indicated that this registration had been affirmed in the course of a hearing before the Tribunal: see Bie and Migration Agents Registration Board (AAT 12418, 25 November 1997) before Ettinger SM. Ms Bie said that she had worked as a legal secretary prior to her registration as a migration agent. The firm of solicitors for whom she had worked from 1994 to 1997 had an immigration practise which involved providing assistance to members of the Filipino community. This assistance also included the lodging of protection visa applications and she was familiar with the forms and procedures required for the lodging of such claims, including appeals to the RRT and the lodging of bridging visa applications with DIMA.
APPLICATION OF THE CHARACTER TEST
Submissions, Policy and Case Law
The meaning of the term "good character" as used in s501 of the Act is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court (see Minister for Immigration and Ethnic Affairs v Baker 1997 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs 1996 68 FCR 422 (hereinafter Irving); and Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 1277 (hereinafter Goldie).
In Irving Lee J gave the following description of the term "good character":
Unless the terms of the Act and Regulations require some other meaning be applied, the words 'good character' 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 provided as a fact whilst the latter is a review of subjective public opinion. See Clearihan v Registrar of Motor Vehicle (ACT) (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1009 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, see Re Davis (1947) 75 CLR 409 at 416, per Latham CJ at 416; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
(at 431-432)
The statement of Lee J was approved by the Full Federal Court in Baker and more recently by the Full Federal Court in Goldie. In the latter decision, in a joint judgment Spender, Drummond and Mansfield JJ said:
The concept of 'good character' in s501 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.
(at paragraph 8)
In Baker the Full Federal Court also gave guidance concerning the way in which a person's general conduct should be taken into account when assessing whether or not they were of good character. The Full Federal Court said in that case:
We do not think there is any warrant for extracting from the broad word 'general' a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct as we understand the term, displayed but once or twice, may lay character bare very tellingly.
(at 195)
In her submissions made on behalf of the applicant Ms Desipulo contended that the Tribunal should find Ms Santos to be a person of good character on the basis of all her statements and acts. She had been an honest and reliable witness who had been confused and deceived by an unscrupulous migration agent. She had come to Australia because she sought refuge from the trauma of an attack by a gang. She had only wanted a temporary refuge in Australia and her sole intention at all levels and stages of her visa applications was simply to seek a temporary means to survive while she was away from the Philippines. After she had fled to Sweden and then Australia her father had been shot. This shooting had added to her fear while her father's murder case remained unsolved.
Ms Desipulo said that Ms Santos did not deny that she had signed the protection visa application but she did deny signing the bridging visa application and also lodging either of these applications with DIMA. Further, she denied having filled in the details in the protection visa application and continued to assert that these documents had been completed on her behalf by Ms Bie. Ms Santos admitted that she had been stupid in signing blank documents but she trusted Ms Bie to give her professional advice and had been badly let down by her.
Ms Chadderton made submissions on behalf of the respondent. She contended that on the basis of all of the evidence before it the Tribunal should conclude that Ms Santos did not pass the character test. In terms of the applications made for a protection visa and bridging visa Ms Santos had difficulty recounting the most basic facts and had given so many different versions of her story that it was very difficult to ascertain if she was ever telling the truth to the Tribunal. Ms Santos' intention had always been to remain in Australia as long as possible in order to gain employment. To further this ambition she had filed the applications for a protection visa and then, despite knowing that she was not eligible for refugee status, had continued to apply for review of the matter by the RRT and then had sought Ministerial intervention under s417 of the Act on supposed humanitarian grounds.
Ms Chadderton also contended that there were reasons for doubting the sincerity of the relationship that Ms Santos had entered into with her husband, the review applicant. While the respondent did not question Mr Santos' love for his wife it was submitted that Ms Santos' sudden devotion for her husband in September 1998 was based on the fact that she wished to remain in Australia by marrying an Australian citizen. Ms Santos had given a number of versions of when she had first told her husband about the true nature of her immigration problems. The fact that Ms Santos had not been entirely truthful with either the Tribunal, or her husband, concerning these matters added further impetus to the assertion made by the respondent that Ms Santos was not a person of good character.
The Tribunal's Views
Bearing in mind the judicial benchmarks of Irving, Baker and Goldie which have been referred to earlier the Tribunal is more than satisfied on the evidence before it that Ms Santos fails to meet the character test as a result of her past and present general conduct. In general, the Tribunal found Ms Santos to be a most unreliable and unconvincing witness. Her personal testimony was marked by so many contradictions and inconsistencies that it remains a difficult task to discern what is fact from fiction. Nonetheless, there remain a number of instances of general conduct engaged in by Ms Santos that lay her "character bare very tellingly".
Those instances commenced with Ms Santos' admitted participation in the preparation and filing of a false application for a protection visa in October 1996. Ms Santos sought to place the principal blame for the preparation and filing of the protection visa, and the associated bridging visa applications, upon Ms Lucita Bie. Ms Bie, as noted, denied any such involvement and also said that she had never met Ms Santos nor provided her with any type of advice or assistance. Given this direct conflict in the evidence provided by Ms Santos and Ms Bie, both Mr Bollard, on behalf of Ms Bie, and Mr Hurley on behalf of the respondent, submitted that the Tribunal should prefer the evidence given by Ms Bie. The Tribunal accepts these submissions. Ms Bie was prepared to answer all of the questions that were put to her by each of the parties involved, as well as by the Tribunal. Apart from the allegations made by Ms Santos there was no other direct evidence before the Tribunal which linked Ms Bie in any way with Ms Santos' case. No attempt was made by the applicant to call as witnesses any other persons who were claimed to have either introduced Ms Santos to Ms Bie or who were said to have been present at a meeting with her.
Further and persuasive evidence to link Ms Santos in person with the lodging of both applications was presented in personal testimony provided to the Tribunal by Mr Stephen Hood, an administrative services office working with DIMA at its Rockdale office in Sydney. Mr Hood described the procedures that were in place during the time that the protection visa (T7) and bridging visa (T8) applications were lodged. Mr Hood indicated that the two receipts that were issued in regard to these lodgments showed both the payer's name and applicant's name to be Leonora Biacolo (Mrs Santos' maiden name; see also T: 87, T: 111). Mr Hood said that it was the required procedure to ask for identification if the payer of the lodgment fee was anyone other than the applicant. This would be the case, for example, if a migration agent lodged the application on behalf of a client although where an agent was well known to the DIMA officials it might not be necessary for specific identification to be shown. It was possible that a mistake could be made but it was most unlikely (see in general transcript 10 February 2000: 80-88).
In the course of giving her personal testimony Ms Santos claimed that the first time that she saw either of these receipts was immediately prior to the RRT hearing and after she had requested to see the material contained in her DIMA file. The Tribunal does not accept this statement by Ms Santos, nor her claim that the handwriting and signature contained on the bridging visa application was not her own. On this point Ms Santos' evidence was in contradiction with that provided by her husband who said that it was his wife's handwriting. The Tribunal accepts Mr Santos' evidence on this point and on all other matters where his testimony is in conflict with that of his wife. The Tribunal found Mr Santos to be a truthful if somewhat naïve witness who seems to have had only a very limited knowledge of his wife's immigration status and related conduct prior to his marriage to her in the Philippines in early 1999. More will be said about this shortly.
The Tribunal is also satisfied on the evidence before it that the sole purpose of Ms Santos in lodging a false protection visa application was to gain a right to work and remain in Australia. It was the same purpose that motivated her subsequently to seek review of the refusal of the protection visa application to the RRT and, when that review also failed, to seek Ministerial intervention under s417 of the Act. While admitting to the RRT that the claims contained in the protection visa application were false, Ms Santos still maintained that she was fearful of returning to the Philippines because of the threats made against her by a gang. The precise circumstances surrounding these threats were clouded in uncertainty by the personal testimony provided by Ms Santos. She seemed incapable of giving a definitive account of who these gang members were or when they had made their threats, or how they had been linked, if at all, to the subsequent death of her father. Given the Tribunal's overall views of Ms Santos' credibility as a witness it has strong doubts about whether there were ever any threats made against Ms Santos which prompted her flight first to Sweden and then to Australia.
Only when she had seemingly exhausted all of the official options available to her to seek to remain in this country did Ms Santos turn for apparent comfort and support from the person who was to become her husband. The Tribunal accepts the evidence that was given by Mr Santos that his wife only told him the full story of her immigration problems after their marriage. Ms Santos' actions in regard to the establishment of her deeper relationship with her husband, and subsequent marriage, do raise serious doubts about her sincerity and commitment to their relationship. The Tribunal does not have any such doubts about Mr Santos' commitment to that relationship, nor about his sustained support for his wife and his strong desire to have her join him in Australia. Nonetheless, Ms Santos' pattern of behaviour in relation to her husband as well as the deceit and deception she has engaged in to remain in this country all point to the attributes of a person whose enduring moral qualities are those of a person of bad character. This finding is in no way diminished by the evidence provided by the Reverend Velasco and Mr Frank Panucci about their perceptions of Ms Santos' conduct as a regular church attender, and also as a reliable and popular employee. Neither of these witnesses were fully aware of Ms Santos' immigration problems when proffering these assessments of her character. The Tribunal is also of the opinion that Ms Santos' disclosure of her immigration malpractice during the course of her interview with officials of the respondent in Manila was no more than an attempt on her part to place herself in the most favourable situation to obtain a spouse visa rather than a genuine expression of contrition and remorse which flowed from her past misdeeds. Additionally, there is doubt as to whether Ms Santos was completely truthful in the disclosures that she made to those officials.
EXERCISING THE DISCRETION
Policy

Having failed to be satisfied that Ms Santos passes the character test the Tribunal must now determine whether it should still exercise its discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Ms Santos. The Policy Direction refers to a number of factors to which decision makers should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations. The Policy Direction notes that:
Decision makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the important placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
(paragraph 2.2)
The three primary considerations to which the Tribunal must have regard are:
the protection of the Australia community, and members of the community;
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.
(paragraph 2.3)
In the present case only the first two of these primary considerations require attention. In regard to the first, the protection of the Australian community, the Policy Direction notes the following:
2.4The 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. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
(paragraphs 2.4-2.5)
Among the examples given by the Policy Direction of offences which are considered by the Government to be very serious are:
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.
(paragraph 2.6(c))

Protection and Expectations of the Australian Community

The nature of the conduct engaged in by Ms Santos has already been set out in considerable detail. It is clear that this conduct falls within that described in paragraph 2.6(c) of the Policy Direction, even though it was acknowledged by the respondent that she had not been prosecuted nor convicted of any specific crime under the provisions of the Act. It is also clear that Ms Santos' conduct is of the type which has been condemned on a consistent basis by the Tribunal in decisions such as Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780; Naidu v Department of Immigration and Ethnic Affairs (AAT 9753; 27 September 1994) and Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997). In each of these decisions the Tribunal has stressed the importance of the observance of truth in dealing with officials in immigration matters, especially where the truth is known only to the person making the statement.
It was not contended by the respondent that there was a likelihood that Ms Santos would repeat her immigration fraud if allowed to come to Australia but it was submitted that she might seek to abuse the Australian Government in other fraudulent ways, such as in taxation or social security matters, should she gain renewed entry to the country.
The Tribunal accepts the respondent's submission that there would be little likelihood of Ms Santos engaging in further immigration misconduct if she were to be granted a spouse visa for this would fulfil her immediate ambition of gaining permanent residency in Australia with the benefits that such a status brings with it. However, the Tribunal does have a concern that the nature of the enduring moral qualities displayed in the past by Ms Santos might well lead her to engage in other forms of undesirable behaviour, to the detriment of the Australian community, should she be allowed to enter the country.
It was also contended by the respondent that a strong deterrent message should be sent to persons who sought to engage in conduct similar to that disclosed in this case that they could not expect to obtain benefits to which they would not otherwise be entitled through their illegal actions. The refusal of a spouse visa to Ms Santos would send such a message in the respondent's view. The Tribunal agrees with this contention, and also with the submission made on behalf of the respondent that the Australian community expects non-citizens to obey Australian laws while in this country. Ms Santos displayed through her consistent actions a total disregard for Australia's immigration laws. She also wasted valuable resources of the Australian Government and its citizens through the processing of her various fraudulent applications.
Other Considerations
Paragraph 2.17 of the Policy Direction refers to a number of other matters which, although not primary considerations, may be relevant to the exercise of the discretion under the Act. The Policy Direction states, in part, that:
2.17 It is the Government's view that where relevant, it is appropriate these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's 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 citizen:

in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), 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.
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
(Policy Direction 2.17)

The evidence before the Tribunal suggested that, with the exception of her husband, little hardship or disruption would be caused to Ms Santos' family if she were to be refused a spouse visa on character grounds. Ms Santos referred to the presence of her sister and husband in Australia and it would appear that both of these relatives were involved in some way in her decision to seek to remain in this country through the lodging of a false protection visa application. In regard to Mr Santos, the Tribunal accepts that he was not a party to any of his wife's misdeeds and remained largely ignorant of her immigration problems before the marriage. The Tribunal has already expressed its views about the nature of the relationship between Mr Santos and his wife. The Tribunal has no doubt that if his wife is now denied a visa to join him in this country he will suffer quite significant hardship. Mr Santos is now an Australian citizen. However, Mr Santos also continues to have strong ties with the Philippines and many members of his family still live in that country. It would therefore be possible for him to return to his country of birth and to renew his relationship with his wife in an environment which would be quite familiar to them both.
CONCLUSION
In exercising its discretion under s501 of the Act the Tribunal is required to undertake a balancing process between the primary considerations referred to and the other factors mentioned in the Policy Direction. This task is never an easy one and especially so when a refusal to grant a visa can have a significant impact upon people's lives. The Tribunal has some sympathy for Mr Santos and the predicament in which he now finds himself as a result of his marriage to a person whose character attributes have been found to be severely deficient. Despite this fact the Tribunal realises that Mr Santos still wishes to be reunited with his wife and to live with her in this country. Regrettably, the balancing process does not weigh up in a manner which allows such an outcome in this case.
This is a case in which a non-citizen has engaged in a most cynical and blatant form of immigration malpractice in order to satisfy her own economic and allied ambitions to reside in this country. She has been untruthful in her dealings with immigration officials and, in particular, has manipulated the humanitarian practices and procedures established to fulfil Australia's international obligations under the Refugee Convention to satisfy her own greedy ambitions. It is a well established fact that each year Australia receives and reviews many thousands of applications by persons who have fled from quite horrendous situations in their homelands. The careful appraisal of their claims for protection constitutes an ongoing and costly aspect of the nation's refugee system. The nature and credibility of that system is put in jeopardy by the type of fraudulent conduct engaged in by Ms Santos. Not only must these fraudulent claims be dealt with in competition with those that are genuine but there is also a likelihood that the revelation that a proportion of claims are manifestly false can alienate community support and sympathy for genuine refugees at large.
The Tribunal has no doubt that a legitimate expectation of the Australian community is not only that non-citizens seeking entry to this country should demonstrate their respect for and willingness to adhere to the laws of Australia but that persons like Ms Santos who have been found to be contemptuous of these laws should not be subsequently rewarded for their misconduct. In the present case the Tribunal believes that the strongest deterrent message possible should be sent to such non-citizens, as well as to any citizens who assist them in their illegal activities, that they cannot anticipate a sympathetic consideration of their past misdeeds. It is the type of conduct which is "so deficient as to show it is for the public good to refuse entry" to those who engage in such behaviour. Thus in the present case the Tribunal is satisfied that there are not sufficient reasons why it should exercise the discretion in Ms Santos' favour and grant her the visa that she seeks. The decision under review is affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  9, 10 February 2000, 2 March 2000
  1 June 2000
Date of Decision  10 July 2000
Migration Agent for the Applicant Ms Kristina Desipulo
Advocate for the Respondent     Mr D. Hurley with Ms Paula Chadderton
Solicitor for Lucita Bie  Mr Peter Bollard