Reyes and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 497
•30 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 497
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1259
GENERAL ADMINISTRATIVE DIVISION ) Re ARTEMIO REYES Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President, Mr J Block Date30 May 2003
PlaceSydney
Decision The decision under review is affirmed. [SGD] Deputy President
Mr J Block
CATCHWORDS
IMMIGRATION – spouse visa – refusal on character grounds – where the Visa Applicant failed to meet the character test – false protection visa application – disregard for Australia’s immigration laws – desirability of consistency in Tribunal decision-making.
Migration Act 1958 – sections 234, 235, 417, 499, 501
Minister's Direction No 21 (Visa Refusal and Cancellation under section 501)
Mungcal-Fabian and Minister of Immigration and Multicultural and Indigenous Affairs [2003] AATA 362
Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496
Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967
REASONS FOR DECISION
May 2003 Deputy President, Mr J Block PART A – INTRODUCTION AND GENERAL
1. The decision under review is the refusal dated 17 August 2000 of an application for a class UF subclass S309 Spouse (Provisional) and a Class BC subclass S100 Spouse (Migrant) visa by Naomi Lulu (“the Visa Applicant”); that application was sponsored by the Applicant, who is her de-facto partner.
2. The Applicant was self-represented; Ms K Grewal of Blake Dawson Waldron, solicitors, appeared for the Respondent. The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with two exhibits;
Exhibit A1 is a large batch of documents submitted by the Applicant entitled “Content: Supporting Documents” and including references by friends of the Visa Applicant. References to numbers, in relation to exhibit A1 should be construed as references to the numbers of those documents as contained in exhibit A1.
Exhibit R1 consists of a fax by the Respondent dated 1 April 2003 addressed to the Tribunal containing documents in the Tagalog language submitted by the Applicant shortly before the hearing, and including translations of those documents into English procured by the Respondent; one of those documents is a statement by the Visa Applicant.
3. The Respondent’s Statement of Facts and Contentions dated 31 January 2003 sets out under the heading “Facts” the relevant events in the order in which they occurred and thus constituting a useful chronology; that content reads as follows-:
FACTS
Date
Event
Reference
16.10.1968
Review Applicant born
T4
8.05.1973
Visa Applicant born
T8
11.05.1996
Visa Applicant enters Australia on a visitor visa valid for 3 months using a false name, Teresita Valeriano and false date of birth, 13.11.1957
T8
Visa Applicant commences working illegally in Australia
T8, T11
2.07.1996
Visa Applicant applies for a protection visa
T41
6.12.1996
The Department refuses the grant of the protection visa
T63
10.1996
Visa Applicant meets Review Applicant and enters into relationship
T10
12.1996
Visa Applicant commences living with the Review Applicant
T10
17.11.1997
The Refugee Review Tribunal affirms the decision to refuse the protection visa
T74
8.12.1997
Visa Applicant applies for Ministerial Intervention under section 417, Migration Act 1958 (Cth)
T84
15.12.1997
Visa Applicant applies for Bridging Visa Class E
T109
15.01.1998
Department grants Visa Applicant Bridging Visa Class E
T111
27.02.1998
Department notifies Visa Applicant's employer that Visa Applicant does not have permission to work in Australia on her visa
T114
15.04.1998
Department notifies the Visa Applicant that the Minister has decided not to exercise his discretion under section 417, Migration Act 1958 (Cth)
T86
22.05.1998
Child of the Visa Applicant and the Review Applicant born
T8
11.08.1998
Visa Applicant and child leave Australia
T8, T103
21.12.1998
Spouse visa application lodged
T8
21.12.1998
Visa Applicant interviewed at the Australian Embassy in Manila
T9
17.08.2000
Visa Applicant and Review Applicant interviewed by telephone
T9
17.08.2000
Department notifies Visa Applicant of decision to refuse grant of spouse visa
T6
4. Because the Applicant was self-represented, I asked Ms Grewal (with the consent of the Applicant) to commence with a brief statement as to the issues. In her opening statement, Ms Grewal informed the Tribunal that the Visa Applicant entered Australia in May 1996 under a false passport in the name of Teresita Valeriano and showing her date of birth as 13 November 1957. (Her date of birth is in fact 8 May 1973 and so that she is considerably younger than the Applicant). The Visa Applicant had previously applied (unsuccessfully) in her own name for a visa. Ms Grewal said that the Visa Applicant worked in Australia almost immediately after her arrival; the Visa Applicant in her evidence subsequently denied that she worked illegally in Australia and at any rate at that particular time. In July 1996 the Visa Applicant applied for a protection visa (in her assumed name) on the grounds that she feared persecution as a member of an organisation which is defunct. She did not attend an interview which was organised in this connection; she also did not give evidence at the hearing by the Refugee Review Tribunal (“RRT”) in which she appealed the initial refusal.
The Respondent became aware that two persons had used passports using the same false name and date of birth. Ms Grewal referred to T9/73 which is a file note by Ray Walshe, Case Manager, Onshore Protection which reads as follows:
“FILE NOTE
SUBJECT: N97/2672 and N96/3371
DATE: 10 July, 1997
DETAILS:
The above two files are separate PROTECTION VISA applications.
The passports presented in support of each application have identical personal details as follows:
Name: Teresita Valeriano
DOB: 13/11/57
Place of Birth: Laoag City
Middle Name: Mercado
Both passports were issued in Zamboanga City.
The passports have different passport numbers and dates of issue.
The passports contain different photographs.
Ray Walshe
Case Manager
Onshore Protection”
5. Ms Grewal then went on to flesh out some of the information contained under the heading “Facts” in the Respondent’s Statement of Facts and Contentions. She referred in particular to the fact that after the RRT affirmed the protection visa refusal decision on 17 November 1997, the Visa Applicant applied to the Respondent on 8 December 1997 under section 417 of the Migration Act 1958 (“the Act”); that application, which appears at T11/84, was made by Mr David Bitel, a partner in Parish Patience, solicitors of Sydney.
6. A bridging visa was applied for in December 1997 and granted in January 1988. The Visa Applicant breached its conditions in that she worked in Australia notwithstanding that the visa expressly prohibited work by her. T25/114 is a letter by the Defendant to her employer Pacare Pty Limited of Dee Why, informing that company that the Visa Applicant was not permitted to work.
7. In respect of the Visa Applicant, her protection visa application and her appeal to the RRT were both made in her false name; her section 417 application was presented in both names. T15/88 is a letter by the Respondent addressed to a Ms Teresita Valeriano at an address in Pittwater Road, Collaroy dated 4 June 1998 acknowledging an application under section 417 of the Act. It would appear then that the other user of the false name and date of birth followed the same path as both applications culminated in applications under section 417 of the Act.
8. A daughter, Grace, was born in May 1998 and after an interview with the authorities in the middle of 1998, the Visa Applicant, accompanied by Grace, left Australia (on 11 August 1998).
9. Ms Grewal then went on to note that there would be an initial question as to whether the Visa Applicant passed the character test and if not whether the discretion contained in Part 2 of Direction 21 should be exercised in her favour.
10. The Applicant had not advised the Tribunal as to whether the Visa Applicant would require the assistance of a Tagalog interpreter. It was possible to obtain the services of a suitable interpreter in the afternoon of the first day scheduled for the hearing. During the course of the morning the Applicant gave evidence. Subsequently, oral evidence was given by four persons, all of Filipino origin, who had furnished references; one gave evidence in the Tribunal itself while the other three gave evidence by telephone. During the afternoon the Visa Applicant gave evidence by telephone link to the Philippines; she was assisted by an interpreter in the Tagalog language. As to whether those services were needed, appeared at times to be doubtful given that she frequently answered questions in fluent English without waiting for the interpreter’s translation. At the end of her evidence, the Applicant wanted to obtain evidence from a medical practitioner in the Philippines; the telephone number furnished by the Applicant turned out to not in service. The Applicant also sought to obtain evidence by telephone from a female friend of the Visa Applicant resident in the Philippines, but it was not possible to make contact with her.
11. There is a preliminary matter of a threshold nature, which was not referred to at the hearing. During her opening address, as referred to previously, Ms Grewal mentioned the fact that the documents included an application for an extension of time. The decision under review was given on 17 August 2000. On 28 August 2002, more than two years later, the Applicant applied both for a review of the decision and also for an extension of time, until 28 August 2002, within which to do so. The extension of time application appears at T1/1 to T1/3. The Applicant’s reasons for his application for an extension of time appear at T1/3. They constitute reasons on the merits, but not reasons as to why he should be granted an extension of time. However and in September 2002 this Tribunal granted the application for an extension of time until 28 August 2002. The Tribunal file does not disclose the basis upon which the application was granted, and save only that the period of delay is relevant, nothing more need be said about the extension application.
PART B – EVIDENCE OF THE APPLICANT
12. The Applicant was born in the Philippines on 16 October 1958. (The reference in the Respondent’s Statement of Facts and Contentions to 16 October 1968 is incorrect). After school he went to university and graduated in Medicine in 1985. He passed a board examination in 1987 and practised as a doctor in the Philippines for about two years. I should note that the Applicant did not prior to the hearing or at the hearing submit a statement as to the evidence which he intended to give; Ms Grewal agreed to dispense with this requirement.
13. The Applicant came to Australia in either April or May 1989 as the fiance of Remedios Reyes Gaspi, who was entitled to Australian residence, and who is also a medical practitioner. They were married in 1989. As doctors who had graduated in the Philippines, they were not permitted to practise in Australia. The Applicant found employment as a pathology collector at St George Hospital. His job entailed the taking of blood for analysis.
14. The Applicant’s wife was distressed about her inability to practise medicine in Australia. In 1992 both the Applicant and his wife went back to the Philippines where she practised medicine. The Applicant also practised medicine there but on a part-time basis; he also worked on a part-time basis in his father’s ceramic business. The Applicant and his wife did not live together at that time in the Philippines; it would seem that they were by that time estranged from each other. Similarly they did not live together when they returned to Australia in 1994, and they were divorced in May 1995. The Applicant referred in vague terms to their being incompatible; he also spoke at a later stage of his evidence of ongoing problems with her, but thereafter said that those problems, whatever they were, did not endure beyond the divorce.
15. On his return to Australia, the Applicant also returned to work as a pathology collector at St George Hospital. His work involved, at times, bending at bedsides. In 1999, he sustained an injury in his lumbar region. Pains were intermittent to begin with but became worse. In June 2001, his injury was aggravated by his lifting of a chair. GIO, the insurers of the St George Hospital admitted liability for a period of two weeks only. The Applicant returned to work in November 2001 but another such incident caused him to stop work altogether in that month, and he has never worked since. GIO has refused to accept any further liability. The Applicant said that he lived for a few months on accumulated leave pay; he then applied for social security and has since May 2002 been receiving about $380 per fortnight from Centrelink. The Applicant said also that “I am always ill”; he spoke in particular of three operations; in 1996 he had a tumour operation (although he said that it was not nearly as serious as that might sound) and also in 1996, a sinus operation; about two years later he had an operation to his leg.
16. The Applicant met the Visa Applicant in October 1996 at the St George Leagues Club. He was introduced to her by a friend. One of the persons who later gave evidence said that he was the friend who introduced them. They commenced living together in December 1996.
17. Some four months after they met, the Visa Applicant told the Applicant that she had come into Australia in the first place using a passport in a false name and reflecting a false date of birth. As he put it, “she told me something I did not expect”. She said that she was sorry that she had not told him previously. She said that she did it because of poverty in the Philippines and because she didn’t have a profession and couldn’t get a visa under her own identity. She obtained the false passport coupled with a visa from a travel agency, at a cost of approximately $3,500. The money was provided to her by relatives.
18. The Applicant said in his evidence the Visa Applicant did not think it was wrong to purchase the false passport from the travel agency on the basis that if they were providing it it would have been in order. (On a number of occasions the Applicant was informed that he was giving evidence which should properly come from the Visa Applicant). He said in this context that in any event and even if it was wrong it was not to be categorised as serious akin to robbery and murder.
19. The Applicant said that he knew that the Visa Applicant’s refugee application was refused but that he did not want to know the details. So far as he was concerned, it was her problem. His answer to the effect that he did not want to know the details was given in answer to other questions in relation to with her status and in particular her claim that she was persecuted in the Philippines as a member of Hukbong Mapagpalaya ng Bayan (“HMB”).
20. The Visa Applicant told the Applicant that she was afraid to tell the authorities as to the true position. She said that she was too frightened to do so and that she feared arrest or confinement at Villawood. The Applicant and the Visa Applicant consulted Mr Bitel of Parish Patience together. Mr Bitel advised them that the Visa Applicant should inform the authorities as to the true position. It was Mr Bitel who framed the Visa Applicant’s application under section 417 of the Act; that letter was in all the circumstances surprisingly brief and uninformative; it appears at T11/84 and reads as follows:
“We act for Ms Lulu and request that you consider our client’s applications under section 417 of the Migration Act 1958 to remain permanently in Australia.
Our client is the de facto spouse of an Australian citizen, Mr Artemio Reyes. She is pregnant to her spouse and is expected to have her baby in May 1998. We will forward a detailed submission to your office once our client has obtained reference letters and other documents to support this application and have instructed us accordingly. If you contemplate an adverse decision, or if there is negative material on our client’s file on which you wish to rely, we ask to be advised before a negative decision is taken.
If you have any inquiries concerning this matter, please contact Mr Nigel Dobbie”.
It will be noted that the section 417 application referred to the Visa Applicant under her correct name; however it also included a reference to her alias. It did not in its terms specify that she relied on the grounds previously advanced, although it might be reasonable to infer that this was intended. It will be noted also that that letter foreshadowed a detailed submission at a later stage, but no other submission was received from Parish Patience.
21. The Visa Applicant asked the Applicant to marry her at the time when she first knew that she had become pregnant. He refused to do so; his attitude was that he had been married and that a marriage certificate was “just a piece of paper”. The Visa Applicant’s daughter, Grace was, as I have said, born in May 1998.
22. The authorities called at their home in the middle of 1998. At a meeting at the offices of the authorities in Rockdale in June or July 1998 Ms Bernadette asked the Visa Applicant for information as to the travel agency which had sold her the false passport and visa. The Visa Applicant refused to supply the information notwithstanding suggestions by Ms Bernadette that her failure to do so would be adverse to her. Her refusal was based on a fear that the travel agency would take vengeance on her family. The Applicant’s evidence was that he told her that she should furnish the information requested and eventually, but only after two refusals, she did do so. (It may be noted that the Visa Applicant when she came to give evidence said that there had been no reprisals against her family by the travel agency concerned).
23. One curious feature of this case was, as I have noted, that the false identity was used by at least two persons entering Australia.
24. The Visa Applicant, accompanied by Grace, returned to the Philippines in August 1998. Since that time, the Applicant has visited the Visa Applicant once only and for a period of nine days, in September 2001. Until June or July 2001 he sent the Visa Applicant maintenance for herself and Grace of $400 per month but nothing at all since then. He said that the Visa Applicant and Grace lived with her family who provided for her. As he put it “there is food on the table”.. The timing of his stoppage of maintenance is odd. Assuming that he could not afford to make any payments out of his Centrelink income, his receipt of that income commenced only in May 2002 nearly a year after he stopped sending the Visa Applicant any money.
25. The Applicant described the Visa Applicant as a woman of no education who could not get a job in the Philippines, even though she did work in Australia. It was put to him that if he returned to the Philippines he could practise medicine again; his reply was that he would first need a refresher course. He said that even if he did return to the Philippines and practised medicine he would not, so he said, earn very much. It was also put to him that his close family and her close family are, (excepting only for siblings of the Visa Applicant working temporarily in Japan) all resident in the Philippines. The Visa Applicant is one of eleven children and the Applicant is one of seven, of whom there are three half-brothers and being the children of his father and his father’s second (polygamous) wife. All of the parents, and including the second wife are residents in the Philippines. In fact Grace has no relations in Australia other than the Applicant, whereas she has a very large extended family in the Philippines. Notwithstanding all of these factors, the Applicant was adamant as to the fact that he wanted Grace to come to Australia and bearing in mind that he has no intention of returning to the Philippines.
26. There were aspects of the Applicant’s evidence and general attitude which are hard to understand. His desire to practise medicine, notwithstanding that he is qualified to do so at least in the Philippines, cannot be described as enthusiastic. Even when he went back to the Philippines in 1992, he practised medicine on a part-time basis only. GIO took the view as I have indicated that he was entitled to two weeks compensation only. He clearly disagrees and has not worked since November 2001. Were the Visa Applicant and Grace to come to Australia they would have his Centrelink income only; he owns no property and lives in rented accommodation. He said that they would “somehow help each other”.. He said that he was sad about the fact that when he visited the Philippines for nine days in 2001, Grace did not display affection towards him even though she recognised him through pictures. There is another odd aspect, to which I have referred briefly earlier in these reasons. The spouse visa application was refused in August 2000. Why then did the Applicant only seek review more than two years later?
PART C – THE OTHER WITNESSES
27. Vilma Datur is also of Filipino origin; she works at Liverpool Hospital as a pathology collector. She met the Visa Applicant through the Applicant in 1996 when she worked as a pathology collector at St George Hospital. She said that the Visa Applicant is a good person who helped her, as a baby sitter, in looking after her son. The witness visited the Visa Applicant in the Philippines in October 2002 and said that the Visa Applicant was thinner. She said also that Grace was shy and aloof. She said nothing about the health of Grace. When asked about the Visa Applicant’s visa status, she said that she knew there was a problem, having become aware of it when Grace was born. She also said that she did not believe that a person who broke the law should be rewarded.
28. Raymond Policarpio (whose reference is at 4.8 of exhibit A1) works in computers at the airport. He said of the Visa Applicant that she is a typical ordinary woman and a good Filipino. He knew her briefly only, and would not say anything against her. He did not know until years later that she did not have a visa.
29. Rossini Talife (whose reference is at 4.4 of exhibit A1) said that she knew the Visa Applicant in 1996. She said that the Visa Applicant was a warm and friendly person, and then went on to say that she considered that the relationship between her and the Applicant was genuine. (It may be noted that the Respondent did not raise as an issue the genuineness of the relationship but nevertheless witnesses volunteered information as to this aspect).
30. Levi Villanueva (whose reference is at 4.2B of exhibit A1) is an air conditioning mechanic. In his written reference he described himself as an assistant nurse. He too said that the Visa Applicant is a good person and he also said that the relationship between her and the Applicant is genuine. It was he who introduced the Visa Applicant to the Applicant. He was asked if he thought that someone who breaks the law is a good person. His answer was that it depends on how the community looks at the law. He said that he didn’t know that she used a false passport to enter Australia. However, he then went on to say that for an Australian to use a false passport would not be right, but it would be different for someone “who wants to uplift his standard of living”. That answer was at least and in all the circumstances honest, if somewhat unexpected.
31. There are other references contained in exhibit A1 which were never referred to during the hearing. In general terms they do not deal with the conduct of the Visa Applicant which gave rise to this hearing.
PART D – THE EVIDENCE OF THE VISA APPLICANT
32. The Visa Applicant is now 29 years old. She is not a person without education; she finished high school (in the medium of both English and Tagalog) and as I have said, probably did not need an interpreter.
33. The Visa Applicant said that having come into Australia using the false passport and identity, she consulted Mr David, a solicitor, in connection with a bridging visa. She had to work in order to earn money. According to her evidence it was Mr David who concocted the story about her having been persecuted as a member of HMB. The RRT in its findings said that, that assertion was not credible in that HMB had been defunct for many years. Indeed the Visa Applicant admitted that she had never been persecuted and that there was no basis upon which she was entitled to seek a refugee visa.
34. The Visa Applicant said that she did not work in Australia until she obtained a bridging visa which took about six months and that during that period she lived on her “pocket money” (US$200, then amended to refer to US$300) and with the help of “friends”. She said in her evidence in chief that excepting for her entry into Australia using a false identity she committed no crimes of any kind in Australia. It was put to her that she made a false claim for refugee status; she sought to assign the blame to Mr David. She agreed that she founded her applications to the RRT and the Respondent on the same false grounds, and in the case of the application to the RRT using the same false identity. She applied for a bridging visa in December 1997 and agreed that she received it in January 1998 but would not admit that it contained a condition prohibiting her from working. (The visa at T24/112 and 113 is clear in its terms and in particular that the Visa Applicant was prohibited from working). She denied nevertheless that she worked illegally. T25/114 indicates that she worked despite the condition to which I have referred at Pacare.
35. The Visa Applicant said that Grace is sickly and often coughed. She said also that this was caused by pollution. She then went on to say that Grace also had loose bowel movements. Exhibit A1 at 4.14 contains a brief certificate by a doctor in Pampanga certifying that Grace has been her patient since she was three months old. It then goes on to say “she had frequent episodes of respiratory infections, bronchial asthma, skin infections and gastro-intestinal infections. Environmental condition plays a major role in the frequent recurrence of such diseases”.. As I noted earlier, it was not possible to obtain evidence from the doctor. It is to be noted though that Grace does not live in Manila. She lives on her grandfather’s rice farm in Pampanga which is a province, and some three hours away from Manila. Put in other words she lives in rural or semi-rural surroundings and not in a city environment, and a long way away from Manila. There was no evidence which would suggest that Grace would be healthier in Australia. Nor having regard to the Visa Applicant’s evidence, does Grace appear to be suffering from anything serious. The Visa Applicant referred as I have said only to coughing and loose bowel movements. It is conceivable indeed that she suffers from normal childhood ailments just as children in Australia do.
PART E – THE CHARACTER TEST
36. It is clear enough that the Visa Applicant fails the character test. For a period of more than two years she committed serious breaches of the Act. The Applicant in his closing submissions said in so far as he was concerned she might have breached the Act but she was nevertheless a good person. He said as I have noted, that her crimes were in no way commensurate with serious crimes such as robbery and murder. This is a view often expressed in these matters and not only by laymen. In ReMungcal-Fabian and Minister of Immigration and Multicultural andIndigenous Affairs [2003] AATA 362, a decision handed down by me very recently, a senior barrister said that it was not “common sense” to equate breaches of the Act with serious crimes. Those views are of course directly contradicted by the provisions of clause 2.6 of Direction 21.
PART F – DIRECTION NO.21 – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 (“DIRECTION 21”)
37. I refer in this part F to the provisions of Direction 21; references to numbered clauses should be construed as references to numbered clauses in Direction 21.
38. Clause 2.3 provides that the primary considerations are:
“2.3(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”.
39. Clause 2.3 should be read in conjunction with clause 2.5 which provides:
“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).”
40. The breaches of both sections 234 and 235 were unquestionably serious having regard to clause 2.6 (c) of Direction 21. In respect of breaches of section 234 of the Act, the maximum penalty provided is ten years imprisonment or $10,000 fine or both. I refer in this context to clause 8(e)of my decision in Re Batula and Ministerfor Immigration and Multicultural Affairs [2001] AATA 496 and where I said:
“8. (e) That the conduct was serious within clause 2.6(c) cannot be doubted having regard to the maximum penalties provided for breaches of section 234 of the Act. I was referred, in this context to a number of decisions of this Tribunal, Re Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 (paragraph 30), Re Lachmaiya and Minister for Immigration and Multicultural Affairs (1994) 19 AAR 148 (paragraph 35), Re Manlangit and Department of Immigration and Multicultural Affairs [2000] AATA 400 (paragraph 33), Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 (paragraphs 6-8), Re Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443 (paragraphs 25 - 28) and Re Tuiono and Minister for Immigration and Multicultural Affairs [2001] AATA 92 (paragraph 10).”
41. I do not rate the prospect of recidivism as high, but it cannot be discounted given that the Visa Applicant’s breaches occurred over a lengthy period culminating in evidence before me which was at times untruthful.. That she worked in breach of her bridging visa cannot be doubted but she denied it. I have grave doubts as to her attribution of blame to Mr David.
42. The expectations of the Australian community would undoubtedly be that a visa should denied to a person who has behaved as the Visa Applicant has done.
43. Deterrence is a major factor. To grant a visa in the face of conduct such as this would send entirely the wrong message, and indeed to reward such conduct with a visa would be altogether wrong. I refer in this context to the decision by Deputy President Chappell in Re Gawronski and Minister for Immigration and MulticulturalAffairs [2000] AATA 790; clauses 44 and 45 of that decision read as follows:
“44. I turn now to the balancing process which must be carried out in regard to the exercise of the discretion. In all cases of this type, where a decision can have such a direct impact upon people's lives this balancing process is not an easy one. The Tribunal certainly has some sympathy for the situation in which the review applicant, Mr Gawronski, an Australian citizen, now finds himself. In regard, however, to the primary considerations relevant to this case - the protection of the Australian community and the expectations of that community - the Tribunal is firmly of the view that this is a case where very significant weight should be attached to the issue of general deterrence. Ms Gawronski's general conduct must be viewed in the context of the convincing and authoritative evidence provided in Ms Reay-Young's statement about the pervasive nature of the false claims made by Filipino citizens for protection visas in order to allow them to remain in Australia for economic and allied reasons. The Tribunal has already expressed the opinion that Ms Gawronski was not an innocent victim caught up in immigration malpractice but was rather a willing recipient of advice and assistance that allowed her to fulfil her ambitions of working for a number of years in Australia.
45. The Tribunal has no doubt that it would be a legitimate expectation on the part of the Australian community that Ms Gawronski should not now be rewarded for that conduct. This is especially the case when she and her advisers have utilised the international humanitarian procedures established under the Convention and the Protocols relating to the Status of Refugees (otherwise known as the Refugee Convention). As the Tribunal stated recently in the decision of May v Minister of Immigration and Multicultural Affairs [2000] AATA 480.
As a signatory to the Refugee Convention Australia has established a well recognised assessment process to determine the legitimacy of claims made for protection visas by persons reaching Australian shores. It is a matter of common knowledge that each year many thousands of dispossessed and traumatised persons do arrive in Australia seeking refugee status. It is both an affront to these displaced persons, as well as to the Australian community at large, that certain individuals -
In this case like Ms Gawronski and her uncle and friends:
should abuse this assessment process in such a flagrant and deliberate manner in order to obtain benefits, such as residency and the right to work, to which they would not otherwise be entitled.
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.”
44. I refer also in this context to the often quoted passage from the decision of Deputy President McMahon in Re Lachmaiya and Department of Immigration andEthnic Affairs [1994] 19 AAR 148; that statement at 155 – 156 reads as follows:
“These are overall requirements important in the administration of immigration procedures. 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 when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
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 Peljhaand Minister for Immigration and Multicultural Affairs [2000] AATA 967 decided some three years ago, and referring to my own decision in Re Golding andMinister 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.”
46. Grace’s interests would at least on a prima facie basis be best served by her being with both her parents. I accept also that in purely financial terms and in the normal course of events Australia offers a better standard of living. But financial considerations are not the only considerations. The Applicant has very little to offer; he has no property and no income other than his Centrelink income. He has been off work for 18 months now, and his evidence during the hearing did not incline me to the view that a return to work is likely at least in the immediately foreseeable future. His concern for the Visa Applicant and for Grace has not been what might have been expected. After the visa was refused, he waited for more than two years before lodging an application of review. His financial support for the Visa Applicant and Grace stopped in June 2001 long before he went on to social security. It was odd to hear him talk of the child‘s poverty-stricken circumstances in the Philippines and then to hear him say that his parents-in-law put “food on the table”.
Grace lives on a farm and where food is provided. She has a large number of close relatives living either with her or in close proximity to her. The Applicant’s refusal to go back to the Philippines is in all the circumstances and as I have demonstrated, surprising in the extreme. In the Philippines he would be qualified to earn a living as a doctor, even if it is true to say that he would first have to undergo a refresher course. (There was no concrete evidence before me as to the truth of this statement) His father has (or at least had) a ceramics business and in which he worked on a part-time basis when he was last in the Philippines. It is possible that the Applicant wishes to stay in Australia because he receives both social security and free medical care. But if this is so, it does not appear to be the preferred course for Grace. As I have said, there is no concrete evidence before me that living in the Philippines in rural surroundings causes health problems arising from pollution or the environment and more particularly bearing in mind that she lives a long way from Manila.
47. The provisions of the preceding clause are relevant to hardship under clause 2.17. On any basis the hardship factor for the Applicant is in comparative terms low and indeed distinctly dubious. He knew at an early stage that the Visa Applicant had no right to residence in Australia. The Visa Applicant in her written statement apologised for her “mistake”.. The Applicant when he gave evidence sought on more than one occasion to apologise for her. I do not think that conduct of this fraudulent kind is aptly characterised as a “mistake”; a mistake is something which happens inadvertently or at all events once. It does not encompass a whole course of fraudulent conduct.
48. This is not a case where the discretion can be exercised in favour of the Visa Applicant. Accordingly the decision under review is affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .......................................................................................
AssociateDates of Hearing 7 and 8 April 2003
Date of Decision 30 May 2003
Advocate for the Applicant Self-represented
Solicitor for the Respondent Ms Kiran Grewal Blake Dawson and Waldron Solicitors
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