Re Ynson and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 844
•13 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 844
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003\2030
GENERAL ADMINISTRATIVE DIVISION ) Re RACHELLE YNSON Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date13 August 2004
PlaceSydney
Decision The Tribunal affirms the decision under review.
[Sgd] Mr J Block, Deputy President
CATCHWORDS
IMMIGRATION – Application for Provisional Spouse Visa – Visa refused under section 501 of the Migration Act 1958 – evidence assessed – consideration of Direction No. 21 – Visa Refusal and Cancellation under section 501 of the Migration Act 1958 – factors considered – conduct of the Visa Applicant considered – issue of deterrence analysed – expectations of the Australian community considered –discretion not exercised in favour of the Visa Applicant - decision under review affirmed.
Migration Act 1958 sections 234, 417, 501
Ministerial Direction 21
Briginshaw v Briginshaw (1938) 60 CLR 336
Muin and Lie v Refugee Review Tribunal (2002) 190 ALR 601
Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935
Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Reyes and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 497
Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967
Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956
Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443
Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731
Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
13 August 2004 Mr J Block, Deputy President part a – preliminary and general
1. The decision under review is the refusal dated 3 December 2003 by the Respondent of an application for a provisional spouse visa made by Sonnie Lacaulan (“the Visa Applicant”); that application was sponsored by his wife Rachelle Ynson who is the Applicant in this matter.
2. Mr Nicholas Poynder of Counsel instructed by Oasis Australia Migration Legal Services appeared for the Applicant and Mr Murray Allatt of the Australian Government Solicitor appeared for the Respondent.
3. The Tribunal had before it the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:-
· (A1) Letter dated 10 June 2004 by Westmead Health; the tender of that letter was accepted on the basis that the third paragraph be treated as deleted.
· (A2) A batch of documents referable to the death of the Visa Applicant’s father who died in a shooting incident (referred to in Exhibit A2 as an “alleged” shooting incident) which occurred in Urdaneta City on 8 May 2004.
It may be noted that Exhibit A2 was tendered on the second of two hearing days and being 26 July 2004, the first hearing day (5 June 2004) having proved insufficient. Exhibit A2 includes a document headed “Complaint/Assignment Sheet” which indicates that the time and date of the report was 7.30 pm on 5 May 2004 while under the heading of “Remarks” the document notes that officers were sent to investigate an alleged shooting incident which occurred at 7.30 pm on 8 May 2004. On the basis that the earlier date should correctly have referred to 8 May 2004 it is surprising that the report of the incident and the incident itself should have occurred at precisely the same time and on the same date. There is however no reason to doubt that the Visa Applicant’s father did in fact die on 8 May 2004.
·(R1) The Visa Applicant’s application for Ministerial intervention under section 417 of the Migration Act 1958 (“the Act”); it was written on his behalf by Clara Suasin (“Suasin”) who is a registered migration agent. The last paragraph on page one and the first four paragraphs on page two read as follows:
“He left the Philippines because he was in fear of his life as a result of his joining the New People’s Army eight years ago as a political worker. He alleged that the members themselves have formed their own groups as a result of differences in their opinions within the major group. Like him, most of his comrades have already escaped from the organisation and have denied being former members for fear that they would be persecuted by the government authorities for their political inclinations.
When he left the New People’s Army, he no longer had the same political beliefs as when he first joined during his younger years. He knew that his actions would lead to extrajudicial killings. This led him to make arrangements to depart Australia to seek protection from another country.
His particular circumstances provide a sound basis for a significant threat to his personal security, human rights or human dignity on return to his own country of origin.
Sonnie may have been a refugee at time of departure from the Philippines but due to changes to his country of origin, is not now a refugee. It would therefore be inhumane to return him to his country of origin because of his subjective fear.
He is a person who has experienced torture or trauma and who is likely to experience further trauma if returned to his country.”
4. As has become usual in matters such as this, the Respondent’s Statement of Facts and Contentions dated June 2004 contains a helpful chronology of events. I include the chronology contained in clause 3 under the head of “Facts” and in addition clauses 11 and 12 under the head of “Contentions on application of the law” of that Statement of Facts and Contentions as follows:
“Facts
Date Event
23 09.73 Applicant born in the Philippines (T14, f163)
07 07.74 Review Applicant born in the Philippines (T 14, f 118)
26.04.00 Applicant arrives in Australia on visitor visa (T2, f14)
02.05.00 Applicant lodges Protection Visa (PV) application (T4, f64)
17.05.00 PV application refused by a delegate (T5, f88)
07.09.00 RRT affirms decision to refuse PV (T6, f92)
31.10.00 Applicant applies for Ministerial intervention (T7, 98)
02.01.01 Ministerial intervention refused (T2, f14)
06.02.01Applicant’s Bridging Visa E ceased. Applicant now unlawful (T2, f14)
--/10/01Applicant and Review applicant meet (T22, f215)
--/01/02Applicant and Review application commence living together Tt17, 208)
02/03/02Applicant and Review applicant marry (T16, f182)
13/05/02Applicant commences Judicial Review in the Federal Court (T2, f14)
23/05/02Applicant advises DIMIA that he wishes to depart Australia (T2, f14)
26/06/02Applicant departs Australia (subject to monitored departure) (T2, f14)
11/07/02Judicial Review withdrawn (T2, f14)
05/09/02Applicant lodges application for 309 Provisional Spouse Visa and subclass 100 Spouse (Migrant) Visa with Embassy in Manila (T14, f113)
27.02.03DIMIA writes to applicant advising that his application for the combined spouse application may be refused on Character grounds (T23, f225)
12.03.03Applicant responds to DIMIA’s letter (T24, f227)
03/12/03Application for 309 Provisional Spouse Visa refused (T2, f11)
…
Contentions as to law
…
11. The applicant applied for a protection visa on the basis of what included false and misleading claims, willingly abusing the immigration system in order to further his interest in remaining in Australia. Essentially, he claimed that he would be killed by the New People’s Army for leaving the organisation. He continued to perpetuate this false claim in seeking review from the delegate’s decision to the Refugee Review Tribunal. His appeal to the Refugee review Tribunal having been unsuccessful, he further perpetuated his false claim by seeking Ministerial intervention pursuant to s. 417 of the Migration Act. After the s.417 application was determined he applied to join the Lie class action in the Federal Court for reasons other than a genuine need to seek Australia.
12. Based upon his history the respondent submits it is plain that the applicant’s intent was to get to Australia and obtain a permanent visa by whatever means were available. The applicant applied for and travelled to Australia on a visitors visa with no intention of returning before the expiry of the visitors visa. His consistent and repeated behaviour has demonstrated a disregard for Australian Immigration laws.”
5. In the interest of balance I include a part of the Applicant’s Statements of Facts and Contentions (undated) under the heading “Statements of Fact” and contained in clauses 1 to 17 as follows:
“1. 26 April 2000 visa applicant Mr Sonnie Lacaulan arrived in Australia on a tourist visa subclass 676.
2. 2 May 2000 visa applicant made an application for a protection visa subclass 868.
3. 17 May 2000 a delegate of the Minister for Immigration refused the application for a protection visa.
4. 19 June 2000 the visa applicant appealed the decision of the delegate to refuse the protection visa to the Refugee Review Tribunal.
5. 7 September 2000 Refugee Review Tribunal affirmed the delegate’s decision to refuse the protection visa.
6. 31 October 2000 Ministerial intervention pursuant to section 417 of the Migration Act was sought.
7. 2 January 2001 Ministerial intervention declined.
8. October 2001, the visa applicant and review applicant, Rachelle Ynson commenced a relationship.
9. 2 March 2002, the visa applicant and review applicant were married.
10. 13 May 2002, Judicial review commenced to the Federal Court
11. 23 May 2002 visa applicant informs DIMIA compliance officer Peter Lawrow that he is not pursuing the Bridging visa E and have made arrangements to depart Australia.
12. 26 June 2002 visa applicant departed Australia
13. 11 July 2002, judicial review was withdrawn
14. 5 September 2002 visa applicant made a combined application for subclass 309 Spouse (Provisional) and subclass 100 Spouse (Migrant) visa
15. 27 February 2003 a delegate of the Minister for Immigration wrote a letter to the visa applicant stating that his application for the combined spouse application may be refused pursuant to section 501(6)(c)(ii) of the Migration Act
16. 12 March 2003, visa applicant responded to delegate’s letter
17. 3 December 2003 the delegate of the Minister made a decision to refuse the application for the combined spouse application of the visa applicant pursuant to section 501(6)(c)(ii) of the Migration Act.”
6. The Applicant did not in this matter furnish witness statements in respect of either herself or the Visa Applicant. Mr Allatt agreed to dispense with this standard requirement. However the T-documents include three letters which might, in combination, be said to amount to a witness statement by the Visa Applicant. A (short) letter dated 25 June 2002 appears at T2 p 38; a second letter dated 4 July 2002 (referred to as the “second letter”) addressed to the Australian Embassy appears at T2 pp 39-41; a third letter dated 12 March 2003 (referred to as the “third letter”) appears at T2 pp 26-27. Those three letters were, according to the Applicant (but not the Visa Applicant), all prepared by the Applicant based on information furnished to her by the Visa Applicant. The content of the second and third letters is included in these reasons as follows:
The second letter.
“From: Sonnie Lacaulan
Aneg, Delfin Albano
Isabela, Philippines 3326
To: Australian Embassy
1st-5th Floors, Dona Salustina Ty Tower,
104 Paseo de Roxas, Makati, Metro Manila
Philippines
PO Box 1071
Metro Manila.
July 4, 2002.
To Whom It May Concern:
I am writing this letter as a supporting statement for my application for a spouse visa to Australia. As advised by one of the officers in the Australian Embassy – Manila, I am writing to explain my situation in relation to my overstaying in Australia.
I initially entered Australia through an agent from Manila. As I understood it at the time I will easily find a job in Australia. The agent promised me there will be plenty of jobs for me there and that she had a connection there who will arrange my paper and will make sure that I will find work instantly.
The Australian connection called himself David and he was the one who applied for my bridging visa and even acquired a tax file number for me so I could start working. Before doing this he took all the US dollar that I brought from the Philippines saying he needed it to pay for the visa application and to obtain a tax file number. He later informed me that he did get a tax file number for me but that the processing of visa will take a little longer but he assured me that I could stay in Australia for now while it was getting processed.
After a while I was wondering what was happening with my application so I sought the services of a Filipina lawyer – Clara Suasin who obtained all the paper work from immigration submitted to David for me. This is when I discovered that David entered me as a refugee applying for protection from the Australian Government. I requested Suasin to continue arranging my paperwork until it reached the ‘Refugee Review Tribunal’. The tribunal later on rejected my claim. In the meantime Clara Suasin referred me to Adrian Joel a known migrant solicitor in Sydney. My application was included in a class action and reached the High Court.
I had been in Australia for a year and a half when I met my wife Gin-Rachelle Ynson. It was with her help and persistence that I seek further advice regarding my visa application. Together we went back to see Clara Suasin since she already know of my history. She now adviced (sic) us that applying for a visa claiming to be a refugee was my big mistake because a Filipino refugee does not exist. At the same time, from her explanation I interpreted that I should stand by my claim if asked by immigration officers otherwise, my credibility would go down the drain because if I told the so-called officers the truth that is, a story was made for me, no one would believe me.
Rachelle and I also wanted to ask Suasin how do we go about applying for a spouse visa. She said that I needed to go back to the Philippines to lodge an application. Soon after we met with Suasin, I consulted Adrian Joel and asked how the application was going, because I did not notify him regarding my change of address (Rachelle and I moved in together), he was not able to notify me about the progress. He told me to come and see him immediately which I did and I gave him the details regarding changes in my situation, that is, I am now married, I am working and I also gave him my new address. About a couple of weeks after this meeting I received a letter from the DIMIA – compliant section in Parramatta letting me know that I have an interview regarding my claim as a refugee.
Confused and scared that officers from the compliant section would take me to Villawood detention centre if I turned up for the interview, I sought advice from another Filipina lawyer – Imelda Argel of what are my options so that I could stay permanently in Australia with my wife.
Rachelle and I went to see Argel and we told her of my situation. She tells us that it was the biggest mistake for me to pursue my application as a refugee. She also tells us not to wait for the result of the high court’s decision because to date there is not a single Filipino granted a visa because of a refugee claim. Since leaving her office, Rachelle and I decided to contact DIMIA – compliant section and told them of my intention to leave Australia and asked for an exit visa. We also told Adrian Joel to cease processing my claims as a refugee seeking protection. In July 2, 2002 I presented myself to the Australian Embassy Manila and was told to write a statement. So, I have.
This is my story. To date, every word in these pages is accurate and true to my knowledge and understanding. I admit and claim responsibility for my stupidity for trusting the agent from the Philippines and the Australian connection. I got sucked in by thier (sic) talks of endless opportunities and thinking that they knew a lot about Australia and that they appeared to know what they were dong, I wrongly assumed that they also knew how to abide by the Australian Law. I also regret my ‘going along’ with the story made for me, if I had known how heavily punished such false claims were, or how it would affect my future in Australia, I would not have claimed that I was a refugee running away from the Philippines.
The only thing that I was running away from the Philippines was poverty. When I saw Australia and how productive it is, I pledged to stay and work there so that I could help with my parents and sisters. However, when I met my wife she urged me to do things ‘legally’. I love my wife and I know that she loves me. Although it is very painful for the both of us to be separated so early in our married life, we hope that by sacrificing ourselves by being apart for now would be enough for the Australian government to consider and to know that I am full of remorse and would be very thankful and honoured if given another chance to be back in Australia.
I apologise for the lengthy statement but it is necessary to tell the truth.”
The third letter
“March 12, 2003
For the attention of JAYE NANG
Designated Specialist (Immigration)
Australian Embassy
PO Box 1071
Makati, Metro Manila
PHILIPPINES
FAC. NO.: (632) 754-6269
Dear Ms. Jaye Nang,
[Re: Sonnie Lacaulan OSF2002/087646]
Thank you for giving me an opportunity to comment before the decision is made whether I will be granted a spouse visa to re-enter Australia.
I am writing for you to please consider me as a candidate for such visa based on my good character and current situation.
As I have already expressed in my letter to the Australian Embassy dated July 4, 2002 and during my tape recorded interview in February 27, 2003, I am deeply sorry for misleading the Australian government. I apologise mainly to the immigration department for I have breached laws and regulations they have put forward. It is very important for me that the Australian government see that I am regretful of my actions and that I am very keen to come back to Australia so that I could be with my wife and start our own family there.
In the statement that I submitted to the Australian Embassy dated July 4, 2002 I have given details on how I came to Australia, ended up with an application for a Protection Visa, working illegally and overstaying for a number of years.
I acknowledge the mistakes I have made in trusting immigration agents and allowing these agents to “guide” me in my decisions in doing the wrong things. In a normal situation I would not have acted the way that I have if I had known the consequences of my actions. Having spent my family’s whole life-savings just to gain entry in Australia and then what little money was left with me on my arrival also taken away, I felt I had no choice then but to stay in Australia to recover from this expense. I also felt that I could not come back to Philippines knowing my family and I will be faced with poverty and unemployment. Therefore, when I was offered to sign my “story” applying for a protection visa, I signed it because I thought it would allow me to legally remain in Australia. I worked thinking it was okay because I had a Tax File Number that “DAVID” the agent got for me. I overstayed because I wrongly believed in a lawyer’s advice that while my application for Protection Visa was being processed, I was allowed to stay in Australia.
Despite of the bad actions I have taken I would like to urge the minister and his or her delegates to please consider giving me a second chance to re-enter Australia.
I believe that I should be assessed as passing the character test because although I participated in an illegal operation I have already stated, I have learnt my lesson well and certainly will not do the same thing again. After I realised that I have illegally applied for a Protection Visa and illegally stayed and worked in Australia, I contacted the compliant (sic) section in Parramatta, NSW, stopped working, bought my ticket home and withdrew my application for the Protection Visa.
In addition, I have no criminal record in Australia or in the Philippines. While I was in Australia I did not cause any injury to the community. All I ever wanted is to be a productive human being, to work and provide for my family.
Also, while in Australia I saw that there are plenty of job opportunities. I also observed and enjoyed a lifestyle that many in the Philippines can only dream of. In Australia, I also met my wife who I love very much. Our relationship is continuing and is genuine although it is becoming more difficult for each of us to be apart. My wife is willing to join me here if there is no other way for us to be together in Australia. However, I feel that I will not be giving her the best because of the poverty and unemployment here in the Philippines.
I feel helpless that I could not offer financial and sometimes emotional support for my wife while we are apart. Although we would like to be together all the time it is not practical because we will be both unemployed here. Also, if ever Rachelle and I have children, I would like them to have a better chance in life than most have here.
I hope that I have given you a good explanation for my actions. I leave my fate to your best judgment. I thank you once again for taking time in reading my comment and I would further be very grateful if you could please let me know once the decision is made.”
part b - evidence of the applicant
7. The Applicant lives at Westmead Hospital where she is a mid-wife; she is in fact a registered nurse and mid-wife. She furnished a letter in support of the Visa Applicant’s application, which appears at T25 p229 – 231, reading as follows:
“March 17, 2003
For the attention of JAYE NANG
Designated Specialist (Immigration)
Australian Embassy
PO Box 1071
Makati, Metro Manila
PHILIPPINES
FACS NO: (632) 754-6269
Dear Ms. Jaye Nang,
[Re:Sonnie Lacaulan [OSF2002/087646]
I am writing to you in relation to my husband’s application for a spouse visa to Australia. As you have indicated in the letter to him dated 27 Feb., 2003 that my husband’s application for a visa may be refused, I am writing to you to “provide further evidence” that our relationship is continuing and genuine.
Since my husband’s departure from Australia in June 2002, we have maintained our lines of communication mainly over the phone. Enclosed is a copy of telephone bills and calling card that I have used over the months. I often telephone my husband at least once a day but on average would talk to him two to three times a day for half an hour to an hour. I have also joined my husband in the Philippines from Nov. 23 – Dec. 28 2002. Enclosed is a copy of my passport/plane ticket/itinerary. He should be able to provide you with photographs taken during my stay there. I am also in the process of applying for annual leave so I could join him again this year.
In view of my husband’s application being “maybe refused”, I would like to urge you to consider the following impact the “decision to refuse” him a visa would do to us. Such decision would further bring hardship to me and my husband not only financially but also emotionally. Financially, it is just possible to live on my income alone, however, the longer we are separated, the more expensive it is for me to keep surviving wherein I have to support myself and my husband overseas.
In addition, the longer we are separated the emotional and psychological burden gets heavier. As a newly-wed couple, we both long to be in each other’s company. However, because we tried to abide to the Australian law re immigration, we have sacrificed the most of the first year of our union. If the decision is made to not grant my husband a visa, I am afraid this could result in adding more strain in our long-distance relationship. Furthermore, the longer we are separated, our dream to start a family of our own is hindered and delayed.
I am a proud Australian, I enjoy living and contributing in my community. I have spent almost 15 years in Australia and have enjoyed working for more than 7 years as a nurse. Although it is a big decision to make, if my husband is refused a visa, we would be more inclined to relocate to another country which would offer us similar job opportunities and lifestyle choices as we have here in Australia. I think it would be a great shame if I have to move elsewhere when I know I am needed here in Australia. Also, I would feel that the government/community that I have enjoyed working for has failed to allow me to enjoy the same civil liberties that every Australian is entitled to have.
Please bear in mind that in giving a decision to refuse my husband a visa, Australia will possibly lose another much needed resource – i.e a registered nurse/midwife. Australia will also be rejecting a potentially productive migrant in my husband.
We both acknowledge that my husband has engaged himself in an illegal operation when he took ill advises from unethical people selling him a full package of false application to stay here in Australia, and to illegally work. Although my husband made a small profit from this damnable transaction, he worked hard for every dollar he got here in Australia, he busied himself with jobs that able Australians may reject because the work is too hard and does not pay as much as “dole” money.
We also acknowledge that when my husband disobeyed the immigration laws, there will be repercussions. However, to deny him a second chance to re-enter Australia, is a punishment that does not fit the “crime”. I think we have already paid the price by our separation and his loss of financial productivity. I also think that it is unfair to punish him even further when the same unethical people who offer fake applications are allowed to rampantly conduct their illegal business, making themselves rich on the expense of unsuspecting people like my husband and sabotaging their chances of legally staying in Australia.
In closing this letter, I would like to thank you for your time and rely heavily on your expert decision and experience. I would appreciate it very much if you/your department let me know of the decision made regarding my husband’s application as soon as possible.
Thank you once again.”
8. As set out previously the Applicant said that she prepared the three letters referred to in clause 6 (and referred to henceforth collectively as “the letters”) in accordance with information provided by the Visa Applicant. (The Visa Applicant when he came to give evidence first agreed that this was so but then said that he prepared the letters himself and that the Applicant was not involved in the preparation of them or any of them).
9. The Applicant said that she has not enquired as to whether her professional qualifications would be recognised in the Philippines. She said however that her professional qualifications were higher than those of registered nurses in the Philippines.
10. The Applicant is pregnant; the baby was conceived when she visited the Philippines (after the Visa Applicant had returned to the Philippines) during the period 27 December 2003 to 11 April 2004. She said that she had had difficulty conceiving because she has polycystic ovarian syndrome.
11. The Applicant said that she had previously considered that if the decision were affirmed she would join the Visa Applicant in the Philippines. However, and since the recent death of the Visa Applicant’s father, she has changed her mind. When asked categorically how she felt about living in the Philippines she said that she was afraid of the poverty. She said also that she was not sure if she would be qualified in the Philippines and moreover that her husband, the Visa Applicant, is currently unemployed.
12. The Visa Applicant’s family has a rice farm situated in a village in Isabela, which is a large region some 12 hours travel (by bus) from Manila.
13. The Applicant said that she has to stay in Australia in order to give birth to her child here. If the decision is affirmed “we will be in a distant relationship”. She said that they had looked into the possibility of being reunited in another country (and she mentioned New Zealand and the United States) but said that each of these countries would inquire as to why the Visa Applicant’s application for a spouse visa has been refused.
14. The Applicant is herself from the Philippines. She came to Australia in 1989 when she was 15 and at a time when her mother had been in Australia for the preceding eight years. Her mother came to Australia on a spouse visa and during that period of eight years and while she was still in the Philippines, the Applicant was looked after by an aunt. She married the Visa Applicant in March 2002 at a time when she knew that he had applied for a protection visa on grounds which were false.
Part c –cross-examination of the applicant
15. The Applicant said that she met the Visa Applicant in October 2001 and started living with him about three months later in January 2002; when they met he told her that his papers were being processed.
16. It was put to the Applicant that by January 2001 (some nine months before she met the Visa Applicant) the Visa Applicant’s application for Ministerial intervention under section 417 of the Act had been denied. She said that Adrian Joel (“Joel”), a lawyer or migration agent, had been recommended to him and that the Visa Applicant had joined a class action brought by Joel in May 2002; (this evidence proved to be somewhat inaccurate as will be demonstrated later in these reasons).
17. The Applicant said that she had seen a letter from Joel dated 20 December 2001 which made it clear that the class action had failed. From December 2001, she knew also that the Visa Applicant had applied for a protection visa. He had told her that he had applied through an agent in Manila. She agreed that she understood that he sought to stay in Australia as a refugee even though he was not a refugee; he told her that he came to Australia as a tourist in order to find work. She married the Visa Applicant in March 2002 with full knowledge of his status or, to be more accurate, lack of it. She said that he withdrew from the class action in May 2002; in fact T13, p112 indicates that the Visa Applicant signed a withdrawal in June 2002, although the withdrawal was finalised only in November 2002. The Visa Applicant and the Applicant went to see the Immigration authorities in Parramatta and the Visa Applicant was given a month in which to leave Australia; he left Australia in fact on 26 June 2002.
18. The Applicant said it would be difficult for her to obtain employment in the Philippines because many nurses were unemployed and that this is why some seek employment in other countries. She said that no application had been made by her in relation to any other country.
19. The Applicant said that if the decision was affirmed she would stay in Australia. She came to this view after the Visa Applicant’s father’s death; she said we could live “on the farm but it is not so peaceful”. The Visa Applicant’s father was killed in Urdurneta (some eight hours away from the rice farm) while selling cattle; there is no suggestion that his death was in any way political. She said also that the murderer lives “in the same town” but the police have not taken any action. The Applicant did not (on the first hearing day) have a death certificate in respect of the Visa Applicant‘s father.
20. The Applicant said that she would have been happy to live in the Philippines but that the death of the Visa Applicant’s father caused her to change her mind. She said moreover that standards in Australia and the Philippines are very different.
part d – the visa applicant’s evidence on the first hearing day
21. The Visa Applicant gave evidence by telephone link to the Philippines and with the aid of an interpreter in the Tagalog language.
22. The Visa Applicant said that he is currently living on the family rice farm. At first he said that he had arranged for the Applicant to prepare the letters and had furnished the Applicant with the necessary information for this purpose. Subsequently he said that he had produced the letters without any assistance from her.
23. The Visa Applicant was educated in the Philippines and after finishing high school had a year at college in Tugueguraro where he studied electrical engineering. He did not finish the three year course for lack of funds and dropped out after one year, and when he was 21. When asked when this occurred he answered that it occurred in 1993, 1994 or 1995. He had taken English courses at high school and at college; some lectures were in English and some in the Tagalog language. He said that he had no difficulty understanding English and can read English but that he cannot express himself clearly in English. (That he has some English was demonstrated by the fact that on occasion he answered questions in English without waiting for the interpreter).
24. The Visa Applicant at first, and either in 1995 or 1996, after leaving college worked as a security guard. In the period 1996 to 1999 he was an overseas worker in Taiwan and where he worked in a factory assembling personal computers. He said that for this purpose one needed to know what one was doing; he was involved in particular in quality control.
25. The Visa Applicant said that he returned to Taiwan in 1996, amended to refer to 1999. In April 2000 he applied to come to Australia as a visitor through a travel agent. He obtained a visa for one week only. He said that he came to Australia because he was told that there are many available jobs in Australia and the agent said that they would supply a job. When asked whether he knew that he would not, as a tourist, be allowed to work he said that he did not know. He said that he intended to apply for another visa in Australia and that the agent in Manila had connections with another agent Sydney.
26. The Visa Applicant was one of a group of 21 persons; he came to know some of them through the agency in the Philippines and thereafter.
27. The Visa Applicant first arrived in Sydney and then went to Melbourne. An agent, David, met the group, of which the Visa Applicant was a part, in Melbourne and then after three days in Melbourne they all travelled back to Sydney. David did not tell them his surname; the Visa Applicant said that he looked Chinese.
28. After the whole group arrived in Sydney, five of them decided to stay in Sydney. The Visa Applicant said that David applied for a tax file number (“TFN”) and a bridging visa for them.
29. It seems clear that the Visa Applicant was referring to his application for a protection visa; that application (T4 p64 and following) was made on 30 April 2000. At T4 p82 the Visa Applicant claimed that “if captured by NPA I may loose (sic) my life”. At T4 p 83 he said “as an escapee of NPA, the penalty of re-capture is shot to death” and T4 p84 he said “as NPA is an opposition group, the authorities will not protect me”.
30. The Visa Applicant’s evidence was that the group was staying at a temporary residence in Lidcombe and that David brought them forms all of which had already been filled in and so that all he and the others had to do was to sign them. He did not know that David had claimed on his form that he was member of NPA, and said that David made this up.
31. The Visa Applicant said that he next saw David when he brought over their passports and accompanied them into the city in order to apply for TFN’s, and that this occurred on 8 May 2002. Each of them paid David $A500. This was in addition to an amount of 150,000 pesos (equivalent to $A4000) paid to the agent in Manila. David gave them a receipt for the amount paid to him and they never saw him again.
32. About three months after their last contact with David the group went to see Suasin “to find out what was going on”. They found her name in the paper. (I note in this context that Suasin’s name has featured previously in applications connected with the Philippines, sometimes in the context of fabricated claims). Suasin told them that the procedure adopted by them was wrong; the Visa Applicant asked her what should be done in order to process the papers. The Visa Applicant said that Suasin obtained the papers at a time when the matter was going up to the Refugee Review Tribunal (“RRT”) and it was at this time that he first learned what was happening. The Visa Applicant said that it was Suasin who had submitted the application for review to the RRT after the initial protection visa application had been denied. He said that he and the others instructed Suasin to continue with the case.
33. In the afternoon of the first hearing day, the Visa Applicant’s evidence continued. His evidence was that just as he had signed what David put before him so he signed the form that Suasin presented to him. When asked whether he signed the document which resulted in the referral to the RRT he said “No I have never seen it”.
34. When asked whether Suasin told him that the RRT had affirmed the original refusal his answer was that she had introduced him to Joel and which resulted in his being involved in a class action. He agreed that he knew that Suasin had applied for intervention on humanitarian grounds. He said that “if I remember correctly that is correct”. He denied that she showed him the letter seeking Ministerial intervention. He said furthermore that he did not know how his papers got to Joel.
35. The Visa Applicant was referred to T2 p39 and in particular to the fourth paragraph on the first page of the second letter, and which contains the paragraph to the effect that he was wondering what was happening with his application. He said that David took the first form and that he heard nothing from David for about three months. He said he did not contact David because he did not know his telephone number and so that he (and the others) decided to consult Suasin. He then said that he had taken David’s telephone number but that David had changed it.
36. The Visa Applicant was asked whether he remembered being told by Suasin that the Respondent rejected his section 417 application. The Visa Applicant agreed after being pressed, that he had been given a letter by Suasin which stated that his application for Ministerial intervention had been rejected.
37. The Visa Applicant said that he first learned that David filed a protection visa application when he went to see Suasin and that he did so because he could not make contact with David; he again said that this occurred about three or four months after he last saw David.
38. The Visa Applicant said that he received a TFN in May 2000 and that he worked from that time onwards in Australia until he returned to the Philippines. He worked at first in Botany in a factory called Eireland, and thereafter (after about four months with Eireland) transferred to Civil Systems Engineering Pty Ltd. His evidence was that, in respect to both jobs, tax was deducted.
39. When asked whether at any time after making his refugee application he learned of the basis upon which it was made he said that he “learned that it was so but I didn’t go because that was my situation”. He went on to say in answer to a question as to why he hadn’t left Australia, that he knew he was illegally in Australia but that he couldn’t go because he knew that conditions were good in Australia and bad in the Philippines.
40. The Visa Applicant said of his father’s death that it might have been caused by jealousy because his father had no enemies. He said that he thought “we might be killed next because we might take revenge on the killers”. When asked who the killers were he said that he did not know because his father had no enemies. He said also that the police could not pursue investigations for this reason.
41. The Visa Applicant said he is not working but that he is looking for work; he said that he could not obtain employment in the electrical industry because he had not finished his course. (There was no evidence before the Tribunal of any applications for attempts to find work in relation to any specific potential employers)
42. It was put to the Visa Applicant that when he worked in Taiwan he obtained a working visa before he left the Philippines, and he was asked why he thought he could work in Australia without one. He said that he was informed by a person in the Philippines that there was abundant work in Australia. He said that he approached that person because he had learned that person could find work in Australia. When asked the name of that person he said that it was Violy and that he was a travel agent.
43. The Visa Applicant agreed that he can speak, read and write English although his reading falls between good and not very good. He said that when he saw the agent he simply signed the forms put before him and handed the agent his passport. He said also that when he received the passport he looked at it and the visa and that he read the visa. He saw that it was a visa entitling him to visit for one week. He agreed (contrary to what he had previously said in this context) that he read the prohibition against work in Australia. The Visa Applicant agreed that he was in a group of 21 (including himself) all coming to Australia on the same basis.
44. Mr Allatt asked him whether it occurred to him that he had involved himself in a migration “racket”, and put it to him that he had known, when he was going to Taiwan, that he needed a working visa. He answered that he did know; he said also that people had told him that life was good in Australia. He said furthermore that he could not go back to Taiwan.
45. The Visa Applicant agreed that the group was representing itself as a tour group. He said that Violy did not, when telling them that David would meet them, give him David’s surname,
46. The Visa Applicant was then cross-examined about the arrival card signed by him when he arrived in Australia. It was put to him that in answer to the question which asked how long he intended to stay in Australia, he had inserted seven days. His answer to this (and other similar questions) was that he did not remember. The Visa Applicant said that the group was half male and half female. He said that after they came back to Sydney from Melbourne he and some others went to the house in Lidcombe, that accommodation having being found by David and that David paid for the first month’s rent. He said that the amount of 150,000 pesos was an inclusive amount and that when they came to Australia David “got our pocket money”. It was put to the Visa Applicant that he paid 150,000 pesos in Manila and he was asked where the money came from. He said that it came from his earnings in Taiwan. It was then put to him that the letters were prepared by his wife based on information furnished by him. He was reminded that in his evidence in chief he had said that his wife had prepared the letters. He said that, “no, I was the one who made and typed and sent the letters”. When asked if he had drafted the letters he answered that he did so in the Philippines and where he had some help. In particular he agreed that the third letter was drafted by him and that he sent it to the Australian Embassy.
47. When it was again put to him that the money was his, having been earned by him in Taiwan, he agreed that this was correct; however it was then put to him that he had said something entirely different in the third letter and where he said that the money paid constituted the whole of his family’s life savings. He answered that most of it was his own money but that his father helped with 20,000 pesos (equivalent to about A$500).
48. When asked whether this was all the money his father had, he answered “that was the help he gave me and the rest is mine”. The Visa Applicant was then referred in particular to T2 p26 in which he had referred to the money as his family’s total life savings; the following exchange took place,
- “the money I spent was my money
- Not your family’s whole life savings?
- Most of it was mine.
- So why did you write “family’s life savings”.
- I wrote that letter and maybe there is some mistake”.
49. The Visa Applicant was then asked about his protection visa application. He answered a number of questions to the effect that he did nothing but sign and he did not read it or even see the front of the form. He denied that he had any suspicions about the whole process. “We had no doubt, because he was the one in Sydney and he knew everything”.
50. Mr Allatt then put to the Visa Applicant that he parted with A$4000 in the Philippines and then gave all or most of his remaining money to David when he arrived in Australia but nevertheless contended that his application was merely an application for a legitimate working visa. He insisted that this was so and that he signed where he was told to sign.
51. The Visa Applicant agreed that although he obtained only a one week tourist visa he expected that he was getting a valid working visa. When asked how long a visa he expected, he answered that it would be as long as he wanted.
52. The Visa Applicant said that the amount of A$500 paid to David was part of A$800 which he brought from the Philippines and that the agent in the Philippines (Violy) did not tell him that he would have to pay so much. He said also that he had A$300 left after paying David, but he did not tell David and agreed “maybe he might have taken that as well having been told that they had A$500”. Mr Allatt put it to him that he had thought that David was taking every penny he had and the answer was “something like it”. The Visa Applicant said that he did not feel aggrieved or that it was all part of the “racket” and did not think that David was doing anything wrong.
53. The Visa Applicant insisted that he did nothing but sign the form and that he learned from Suasin for the first time about the “stories”. He said also that he then learned for the first time that David claimed that he was a member of NPA. He said also that if he had read the application he would not have continued because he knew he was not a refugee.
54. The Visa Applicant was then again cross-examined about the third letter and in particular the fourth paragraph on T2 p26 which includes::
“Having spent my family’s whole life-savings just to gain entry in Australia and then what little money was left with me on my arrival also taken away, I felt I had no choice but to stay in Australia to recover from this expense. I also felt that I could not come back to Philippines knowing my family and I will be faced with poverty and unemployment. Therefore, when I was offered to sign my “story” applying for a protection visa, I signed it because I thought it would allow me to legally remain Australia.”
His responded that he thought that such a statement would have the effect of allowing him to remain in Australia. (It will be noted that the third letter indicates that there was a story right from the outset and not, and as was claimed, thereafter)
55. He was then asked what “story” he was referring to. He said it was a reference to David’s application which contained a false story but again said that he knew nothing of what was contained in the application. When it was put to him that he referred in his letter to a “story”, and being something of dubious veracity, he answered simply that he signed what David wrote and that he did not know what the “story” was. When asked whether there was another story, if not the one in respect of the protection visa, he answered, “No”.
56. He was asked what he was thinking about when he drafted the letter, which plainly indicated that the original application contained a false story and he answered “I was just explaining that what I did was wrong and which I should not have done”.
57. When he was asked if he expected that the Tribunal would accept this explanation in relation to the precise terms of the letter, he answered that “I was saying that if I had known it was wrong I would not have done it”.
part d– the visa applicant’s evidence on the second hearing day
58. Mr Allatt commenced with a few questions relating to the Visa Applicant’s evidence on the first hearing day. He was again referred to the letters and in particular his statement of a “story”. It was put to him that he knew from the outset that his protection visa application was false. He answered that he had signed the letter but, “the only thought that I was working illegally”.
59. Further, cross-examination indicated a degree of confusion in that the Visa Applicant may have thought that Mr Allatt’s reference to a letter related to his original protection visa application. The Visa Applicant was referred to his statement in the relevant letter and where he said that he knew that what he had done was wrong and apologised; his answer was that he did not remember saying that.
60. The Visa Applicant was cross-examined at length about his relationship with Suasin. He had said that Suasin was engaged by him when he had sought review by the RRT of the original refusal of his application for a protection visa. It was put to him that Suasin had brought a Freedom of Information (“FOI”) application in August 2000 seeking the file and this being so she could not have been involved at any earlier time. (T6 p93 indicates that the RRT application was lodged on 19 June 2000; the RRT decision makes no mention of any involvement of Suasin). The Visa Applicant answered simply that he approached Suasin and she took on the paperwork. He went on to say that Suasin indicated at the time of the RRT decision that she could not handle the case further and in consequence of which he consulted another lawyer, and being Joel.
61. The Visa Applicant’s evidence as to Suasin in particular was often evasive. He said that he went to see Suasin and agreed that he did so after she obtained the file. He said that they talked the matter over and it was only then that he discovered that there had been false claims to the effect that as a member of NPA he faced persecution. He said that he was shocked but then he could not do anything about it and that moreover Suasin advised him to go on with the case and on the same grounds. Exhibit R1 (and being her letter seeking Ministerial intervention) indicates that this is what was done. At this stage Exhibit R1 was read to the Visa Applicant in full and he was asked whether he gave Suasin instructions to write it. He answered “I think she has done the same as David did”. When asked whether she did so without consulting him he answer was, “I couldn’t find David so I approached Suasin”.
62. Further examination on the same lines resulted in admissions to the effect that the Visa Applicant was a party to the continuation of proceedings based on the same false grounds and that he did so, on advice from Suasin.
63. The Visa Applicant agreed that he knew in January 2001 that the Respondent had refused his section 417 application. It was put to him that he knew also that he was then advised that he should arrange to leave Australia; he answered simply “No I was advised to see Joel”.
64. The Visa Applicant having agreed that he knew by January 2001 that he had to leave Australia, said “yes she told me but I just continued”. The Visa Applicant’s evidence as regards Joel was that, unlike Suasin, Joel did not know that his protection visa claims were false.
65. The Visa Applicant was vague in the extreme as to what Joel did and when. Mr Poynder later from the bar table explained the ramifications of what occurred and his explanation is contained in clause 65. Mr. Poynder furnished the Tribunal in the first instance with an extract from the decision in Muin and Lie v Refugee Review Tribunal (2002) 190 ALR 601 reading as follows:
“Muin’s case, along with the accompanying case of Lie v Refugee Review Tribunal, involved applications for protection visas by Indonesian nationals. In each case, the decision of the Minister’s delegate to refuse each application included numerous items of “country information in the Part B documents. These documents included information which might have supported each applicants’ case, by referring to the ill-treatment of Chinese in Indonesia. After an appeal had been lodged with the RRT in each case, the Tribunal wrote to each applicant saying that it had “looked at all the material relating to the application”, but was unable to make a decision “on the papers”. However a majority of the High Court accepted that the Part B documents had not been sent to the Tribunal, which had not therefore looked at all this material. It was agreed between the parties that, had each applicant known that the Tribunal did not have the Part B documents they would have acted to correct this (because some of it was favourable to the applicants). The Court therefore held that each applicant had been mislead by the Tribunal, each decision was set aside as lacking in procedural fairness.”
66. The Visa Applicant (and he was one of a number) sought, through Joel, to become a party to an action in the High Court in which Muin and Lie as representatives of a number of plaintiffs sought relief against the RRT and others. On 19 December 2001 the applications for joinder were dismissed by the High Court.
67. The Visa Applicant then (with others), in May 2002 sought to become party to an action also in the High Court in which he sought relief similar to that applied for in the action which he had tried to join. However he withdrew his participation shortly before leaving Australia in June 2002, although (and as I have said) his withdrawal was formalised some months later. (The Visa Applicant said in this context that he decided that he should go home and thus discontinued his participation. He obtained a bridging visa and again as set out previously, left Australia on 26 June 2002.)
68. When asked what he would do if the decision was affirmed the Visa Applicant said that he had discussed the matter with the Applicant and the result was “nothing much”. He said he is not working and that work is difficult to find; he said also that he might perhaps seek a working visa in another country.
69. In re-examination the Visa Applicant said that he did not instruct Suasin as to what she should say in the section 417 letter (Exhibit R1) but knew that she would have to continue to rely on the same baseless grounds. A number of questions as to the proceedings instituted through Joel were answered to the effect that he did not know or could not remember.
part e – the evidence generally
70. It was common cause that at least from the time when he consulted Suasin the Visa Applicant knew that false claims as to his being a refugee had been made. Mr Allatt contended that the Visa Applicant knew from the outset that he was claiming to be a refugee when he knew perfectly well that he was not. I have come to the conclusion that from the outset the Visa Applicant sought to gain residence in Australia on grounds which he knew to be false. Mr Poynder contended that the Visa Applicant believed that he was paying A$4000 for a seven day tourist visa, and in the further belief that once in Australia he would be able to seek another visa which would entitle him to stay in Australia as a resident. Such a claim is inherently incredible for a number of reasons. In the first instance the Visa Applicant is not ill- educated; he finished high school and had a year of post-graduate education. In the second place he knew perfectly well that to work in another country required something more than a tourist visa; his experience in Taiwan is relevant in this context. He admitted that he knew from the outset that his tourist visa contained a prohibition against work.
71. Nor do I find it at all likely that having come to Australia as part of a group of “tourists” some of whom he had come to know, he believed that he was in fact a tourist. He admitted that he discussed matters with his fellow “tourists”. In the same context his evidence that he signed the original protection visa application in blank without looking at it, and in circumstances where the mysterious David is alleged to have inserted false grounds, was not credible. David was described as Chinese; the spurious grounds required some knowledge of the Philippines. It is of course possible that the spurious grounds was supplied by Violy; if this is so the evidence of the Visa Applicant that he had no option, when he learned the truth, but to proceed on those same false basis becomes even harder to credit. The Visa Applicant’s evidence was often evasive, and in particular in the sense that he would furnish answers which were not answers to the questions asked. The letters contradict some of his evidence; according to the Applicant they were prepared by her on information supplied by the Visa Applicant. This was confirmed by him at first, but only at first; he afterwards claimed that she was not involved. His evidence at to financial matters was contradictory; according to him the amount of A$4000 came from his Taiwan savings or later mostly from that source; the third letter presents a very different version.
72. The letters indicate in stark terms that Mr. Allatt’s contention must be correct. The third letter contains a statement by the Visa Applicant that he spent the whole of his family’s life savings; this can be contrasted with his evidence that the money emanated from his Taiwan earnings or mostly from that source. In the same letter the Visa Applicant stated that after he realised that he had illegally applied for a protection visa and illegally stayed and worked in Australia, he contacted the authorities and withdrew his application and went home. That allegation was particularly untruthful. His evidence was that he pursued claims which he knew to be false through Suasin and on her advice. Moreover, after his application for Ministerial intervention failed he sought to become involved on two separate occasions in High Court litigation which, it is clear, was based, so far as the applicants were concerned, on claims as to refugee status. The second letter is relevant in this context. The Applicant’s own letter quoted in clause 7 refers to her husband involving himself in an illegal operation from the outset.
73. On the evidence before me there is only one possible finding and that is that the Visa Applicant knew from the outset that he was making himself party to a “racket” and moreover that for him to stay in Australia would necessarily involve a refugee application on grounds which he knew to be false. Having regard to a contention by Mr. Poynder that it is necessary for me to be satisfied that my finding is in accordance with the test referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, I am so satisfied. Mr. Poynder argued that although the Visa Applicant knew from the time when he consulted Suasin that he would be proceeding on false grounds, he did not know that this was the case before that time. , It is hard to see why such a finding (if I were to make such a finding and I am not) makes any significant or material difference.
74. In any event the Visa Applicant cannot claim that he is not responsible for the original protection visa claims made on his behalf. Let me assume for a moment that at least the initial protection visa application contained grounds of which he was unaware, however unlikely that may be. Thereafter, and as I have said, and on the same false grounds, he (at least on his own evidence) pursued the matter to the RRT, then to the Respondent under section 417 of the Act and thereafter in two applications through Joel to the High Court. If it is true to say that the Visa Applicant adopted the false grounds only after he came to know of their existence, (although this is not at all likely), it does not seem to me that his conduct was less reprehensible or if it was less reprehensible, that the difference was at best for him marginal.
75. Reference was made during the hearing to the fact that this is a ”classic” Philippines case. Mr Poynder contended that this case falls outside the “classic” category because the Visa Applicant was not knowingly making false claims from the outset. It is my view that he was. It is likely, on the contrary, that people-smuggling has, in the Philippines, become as institutionalised as it has in certain other countries. Violy took A$4000 from each of 21 tourists – a very large amount for each of them. His associate David in Australia then met the “tourists” and then made false protection visa applications on grounds, so the Tribunal is asked to believe, of which the Applicant was altogether unaware. All of this is so inherently improbable that it can be dismissed.
76. As I have noted Suasin has figured in many cases which have come before the Tribunal. The Visa Applicant said categorically that when she became involved, and although his evidence was that she became involved much sooner than was in fact the case, she advised him that he should carry on on the same false basis. I do not make a finding against Suasin simply because she was not heard in respect of what is after all a serious allegation. However those allegations deserve investigation.
77. This case is in some respects more reprehensible than the standard “classic” for another reason and that is that the conventional “classic” case does not generally involve two High Court applications.
part f –direction under section 499(2) visa refusal and cancellation under section 501 of the migration act 1958 (“ Direction 21”)
78. Mr Poynder having conceded, correctly in my view, that the Visa Applicant could not pass the character test, it remains only to consider Part 2 of Direction 21. In this Part F, references to numbered clauses should be construed as read as numbered clauses in Direction 21.
79. Clause 2.3, which sets out the primary considerations, is as follows:
“In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or
children and the person under consideration, the best interests of the child or children.”
80. Clause 2.3 must be considered in conjunction with clause 2.5 which reads as follows:
“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 or recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
81. It was common cause that the Applicant’s pregnancy does not require that it be treated as a primary consideration. But it is a relevant consideration even though the child was conceived in the Philippines, after the Visa Applicant was obliged to return to the Philippines.
82. It is clear enough that the Visa Applicant has committed a number of breaches of section 234 of the Act and where the penalties prescribed are serious. I include under this head his evidence before the Tribunal which was often untruthful. In addition he worked in breach of 235 of the Act. That his conduct was very serious within clause 2.6 cannot be doubted.
83. The Visa Applicant has clearly demonstrated a strong desire to obtain residence in Australia so as to escape what he perceives as the poverty of the Philippines; in order to do so he has established that he is prepared to treat Australian immigration law as if it did not exist or at any rate as if it did not apply to him. Recidivism cannot be discounted even though all of his efforts were designed to achieve that single object. (I refer in this context to the cases cited in clauses 85 and 86 below)
84. I consider that the expectations of the Australian community would be that a visa should be refused in circumstances such as these.
85. In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted at paragraph 36 that:-
“...The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again trangress (sic) in matters where truth and good faith could be deceptively withheld”.
86. In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, Deputy President Wright QC noted at paragraph 33, that:
“In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community”.
87. In the context of deterrence, I refer to Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935; at paragraph 47, Deputy President Purvis QC stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
88. As to whether visa refusals do in fact have a deterrent effect is difficult to evaluate, having regard to the number of cases of this nature coming before the Tribunal and the absence of any statistical evidence one way or another. However, to reward the Visa Applicant with a visa in these circumstances and in the light of his conduct would be altogether incorrect.
89. As to hardship within clause 2.17 the Applicant, before she married the Visa Applicant, knew that he had no legal right to be in Australia. Indeed she married him at a time when he was embarking on final attempts to gain legal status involving High Court applications through Joel. She said that although she had intended to join the Visa Applicant in the Philippines if the decision were affirmed, she had decided not to do so and that his father’s death had caused her to think differently. I do not believe her evidence in this regard. The Visa Applicant’s father did not meet his death for political reasons; it occurred while he was engaged in selling cattle and in a town a long way from the village where the rice farm is situated; it is possible (although this is mere speculation) that it occurred in consequence of a business quarrel. But even if there is danger in that particular part of the Philippines (and this is very doubtful) this is not so of the whole of the Philippines. Her evidence that she was concerned about poverty in the Philippines was much more likely to be true. There will be some hardship for her and also for her child when it is born, although the child will enjoy all of the advantages of life in Australia, but if she and the Visa Applicant are to remain parted, that is after all and when all is said and done, a matter of personal choice. They could be reunited in the Philippines; it is also conceivable that this could occur in another country. I find it difficult to believe that a trained mid-wife and nurse (who was born and brought up in the Philippines and speaks the Tagalog language) could not find employment in the Philippines or elsewhere. Nor is the Visa Applicant without resources and training. He obtained employment before he left for Taiwan, and thereafter in Taiwan. It is difficult to understand why it is now not possible for him to find work in the Philippines. As I have said, no evidence of particular applications or attempts was furnished to the Tribunal. I have some doubt as to his statement that he is unemployed; it is more likely that he is engaged in activities on the family farm.
90. In the end result this is on analysis yet another of the long line of Philippines cases involving an applicant who without proper qualifications or skills seeks a better life in Australia. In furtherance of that ambition he was prepared to take whatever unlawful steps were required and there were many of them. Even in relation to these proceedings he did not behave truthfully either at the hearings or before the hearings took place. The letters were demonstrably untruthful in important respects. His statement that when he discovered the truth as to false claims he abandoned his proceedings and went home is particularly reprehensible in the light of the fact that he did precisely the opposite..
91. As I have noted this case was referred to as a “classic”. It is merely one of many in the same vein. I refer by way of example to clause 45 of my decision in Reyes and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 497 and which reads as follows:
“45. The spate of spouse visa cases coming from the Philippines does not appear to be slowing. The reasons are not hard to discern. The Philippines is a poor country and Australia by contrast is a rich country which provides numerous benefits including social security, medical care and education. Many of the cases coming before me have a common theme; a young and single woman obtains a visitor's visa. She enters Australia and starts working within a short period; within one month she applies for a protection visa on grounds which are spurious. The refusal of a protection visa leads to an appeal to the RRT and when that fails, there is a further application to the Respondent under section 417 of the Act. Marriage occurs a short time before she returns to the Philippines. The cost to Australia in terms of departmental work and time and the cost of the various tribunal hearings thereby involved must be considerable. The problem appears to commence with the issue of the visitor's visa; it is in this context that there might perhaps be some room for more vigilance. This case is atypical in one respect and that is the use of a false passport, which is rare but by no means unknown. In Mungcal-Fabian (supra) a visa applicant received a visitor's visa notwithstanding that he had previously overstayed a visitor's visa and been detained and obliged to leave Australia. (I doubted the evidence of the visa applicant in that case to the effect that he was working in order to save for a return ticket for a number of reasons and including the fact that the embassy would not have been likely to have issued a visitor's visa without proof that he had a return ticket). The issue to the visa applicant of a visitor's visa in that case may have been a case of isolated administrative error, and of course no system is proof against fraud of the nature perpetrated by the Visa Applicant in this case. It seems to me that it is likely on the balance of probabilities that the whole procedure commences in the Philippines and not in Australia. The "visitor" knows that she must work on her arrival in Australia; she also knows that in order to work she will need a bridging visa which can be obtained when application is made for a protection visa. The protection visa concept is in other words developed and known before the "visitor" ever sets foot in Australia. It is unlikely that Mr David concocted the story as to her being persecuted as a member of HMB and I am not prepared to make a finding to this effect. In Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 decided some three years ago, and referring to my own decision in Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956, I said in clause 9(a):
"9(a) A part of paragraph 12(b) of my decision in re: Golding (supra) is also, as a matter of convenience, repeated in this decision as follows:
(b) Although each case of this nature turns on its own facts it is relevant in my view to have regard to decisions and in particular recent decisions of this Tribunal which involve similar fact situations. A search has revealed a large number of just such cases, and which indicate a common problem or theme. That pattern or theme includes most of the following factors:
(i) a female applicant from the Philippines who enters Australia on a visitor's visa;
(ii) soon after arrival an application is made for a protection visa based on whole or in part on false grounds;
(iii) when that application fails there is an application to the RRT, followed, when that application is in turn unsuccessful, by a section 417 application to the Respondent;
(iv) there is often work in Australia in breach of visas and a lengthy stay in Australia (and towards the end of it a marriage in Australia), before a return to the Philippines;
I indicated at the hearing that I intended to refer to similar fact situation decisions, even if they were not cited at the hearing. Accordingly I refer by way of a few examples only to the decisions of Deputy President McMahon in re: Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443, re: Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, re: Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 and re: Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554; and of Deputy President Chappell in re: Gawronski (supra) and re: May and Minister for Immigration and Multicultural Affairs [2000] AATA 480. In all of these cases the Applicant was unsuccessful. As Brennan J said in re: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, consistency in decision making is desirable (at 636, 639 and 643). I note in any event that I agree with all of these decisions.”
92. This is not a case in which the balancing exercise required by Part 2 of the Direction can operate in favour of the Applicant and the decision under review must be affirmed.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: A. Krilis
AssociateDate/s of Hearing 5 July 2004 & 26 July 2004
Date of Decision 13 August 2004
Counsel for the Applicant Mr Nicholas Poynder,
Solicitor for the Applicant Oasis Australia Migration and Legal Services
Solicitor for the Respondent Mr Murray Allatt, Australian Government Solicitor
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