Sandiongco and Minister for Immigration and Multicultural Affairs - [2001] AATA 823

DECISION AND REASONS FOR DECISION [2001] AATA 823

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1653

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ARIEL SANDIONGCO
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon R N J Purvis, QC, Deputy President

Date 28 September 2001
PlaceSydney

Decision The decision under review is affirmed.

[sgd]The Hon R N J Purvis, Q. C.
Deputy President
CATCHWORDS
Immigration – subclass 309 provisional spouse visa – protection visa - whether visa applicant satisfies the Tribunal that she passes the character test – whether the Tribunal should exercise available discretion to refuse to grant spouse visa
Migration Act 1958 – ss 501(6)(c)(ii)
Minister's Direction No 21 (Visa Refusal and Cancellation under section 501)
Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422

REASONS FOR DECISION

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

THE APPLICATION

This is an application made by Mr Ariel Sandiongco ("the review Applicant") on the 26 October 2000 seeking review of a decision of a delegate of the Minister of Immigration and Multicultural Affairs ("the Respondent") made on the 6 September 2000. By such decision the Respondent refused the grant of a class UF subclass 309 spouse (provisional) and a class BC subclass 100 spouse (migrant) visa to Ms Hilda Dungo ("the Visa Applicant" and wife of the Review Applicant).

The reasons for the decision to refuse the grant of the visa inter alia stated (T2, p10):
"…
11. I find that the applicant's course of conduct over almost three years in relation to the department indicates a disregard for the laws of Australia in particular in relation to the department. The duration of this conduct indicates that it was not an isolated incident. Given her general conduct over this lengthy period, I questioned her commitment to obeying the laws of Australia should she be granted a visa.
12. Having regard to the applicant's past and present general conduct and based on the evidence before me I find that she is not of good character in relation to her past and present general conduct and as such fails to satisfy me that she passes the character test.
…
(b) likelihood that conduct will be repeated (including any risk of recidivism)
The Applicant has been dishonest in relation to the department and demonstrated a consistent course of conduct of a fraudulent nature for a period of almost three years. There has been an expression of remorse for her actions… however given the course of conduct, I find as a result that the risk of recidivism is significant.
(c) general deterrence
The Applicant's application for a protection visa is only one of many instances where applicants have wilfully abused the migration system. In fact she was assisted in some of her actions by a Filipina friend in Australia who was herself engaged in similar actions. This is a practice that should not be condoned by Australia and the community. The refusal of her spouse visa will act as a general deterrent to the community who seeks to obtain benefits that they would otherwise not be entitled to through illegal means. In the experience of this office, the Filipino community in Australia is close-knit and the outcome of such applications becomes widely known.
…
THE EXPECTATION OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to respect and obey Australian laws whilst in Australia. The actions were deceitful and amount to fraud, notwithstanding her reasons for doing so. Her actions would be unacceptable to the Australian community.
…
I find that the nature and the duration of the applicant' conduct in relation to the Department, the RRT and the Minister, the need to deter other similar actions by others in the community (its been a common occurrence) and the expectation of the Australian community, outweigh any distress that will result to the applicant and the sponsor.
…
EXCERCISE OF DISCRETION
…I find that the level and duration of the fraudulent behaviour is not outweighed by the existence of the spouse relationship with the sponsor.
The Applicant has for a lengthy period consistently dealt untruthfully with the department. In a system that requires, and in fact depends on a person to be open and honest so that a proper assessment can be made.
In view of her past and present conduct and taking account of all of her circumstances, I do not elect to exercise my discretion to grant a visa to the applicant in this case.
…"

The Hearing

At the hearing of this application the review Applicant was represented by Mr Ignatius Asuzu of Counsel, the Respondent by Mr Nathan Cureton solicitor.
The documents lodged by the Respondent pursuit the section 37 of the Administrative Appeals Tribunal Act 1975 were admitted in to evidence and marked T1 – T31. The review Applicant caused written material to be tended and received in evidence the same being marked accordingly.
Exhibit No.       Description         Date
A        Statutory Declaration of Ariel Sandiongco (the Applicant)      12 April 2001
B        Certification of Hilda Dungo Rev Arnel.Pineda 12 October 2000
C        Certification of Hilda Dungo Barangay by Captain Leonardo Sinamban    11 October 2000
D        Certificaton of Hilda Dungo by Amelita Ordonez           10 October 2000
E        Letter from NSW Police Service 22 December 1999

The Review Applicant, the Visa Applicant and Mr Jones Phillips, Production Manager (the Review Applicant's employer) gave oral evidence upon which they were cross-examined.
THE ISSUES
The issues for determination by the Tribunal in this application as stated on behalf of the Respondent are:

(1)Can the Visa Applicant satisfy the Tribunal that she passes the character test having regard to whether:

she applied for a protection visa for the purpose of circumventing Australia's immigrating laws;
she worked in Australia when she did not have permission to do so;
she sought Ministerial intervention under section 417 of the Migration Act 1958 ("the Act")] when she had no basis to do so;
she had remained in Australia unlawfully.

(2)If the Visa Applicant does not pass the character test, should the discretion be exercised in her favour having regard to:

the seriousness of the Visa Applicant's conduct;
the need to protect the Australian community;
the need for deterrence;
the expectations of the Australian community; and
the hardship to the Applicant.

In a Statement of Issues filed on behalf of the Review Applicant, matters were raised involving the:

"humanity of individual Australian citizens";
forcing of an Australian citizen to relocate overseas; that is, "virtually deporting" the Review Applicant is contrary to the purpose of section 501(6)(c)(ii) of the Act;
"heightened consciousness" of the Australian citizen who "will be mostly affected" by an adverse decision;
giving of "a second chance";
original decision should not be followed "slavishly";
general conduct of the Visa Applicant, which did not involved the commission of "any crime of a repugnant nature"; and'
Visa Applicant has ''shown contrition" and is "morally blameless, in light of her positive evidence of reformation".

If established, some of the above aspects as raised on behalf of the Review Applicant, might be relevant to the weight to be attached to a particular relevant consideration. As will be indicated shortly, not only has Parliament legislated specifically on matters of visa refusal, but the Minister pursuant to the power conferred upon him by section 499 of the Act has issued a Direction 21. This direction is to be followed by the Tribunal in the course of it arriving at the correct or preferable decision and details various considerations that should when duly considered lead the Tribunal to such a decision.
Other aspects raised on behalf of the review Applicant such as the giving of a "second chance" and a following "slavishly" of the delegate's decision may not be relevant to the issues or matters warranting consideration. If the conduct of the Visa Applicant leads to an adverse view as to her character, then there is no question of she being given a "second chance". The Tribunal is not determining a punishment. The Tribunal is required by Statute to consider the material tendered before it and on the basis of that material make its decision. A part of that material is the decision from which the application arises.
THE RELEVANT LEGISLATION AND DIRECTION
The Act provides with respect to refusal of a visa on character grounds that in accordance with section 501(1) the Minister may refuse to grant the visa to a person if the person does not satisfy the Minister that the person passes the character test.
" Character Test
6) For the purposes of this section a person does not pass the character test if:
…
(c.) Having regard to either or both of following:
          (i) the person's past and present criminal conduct;
          (ii) the person's past and present general conduct;
          (iii) the person's is not of good character; or
…"
It is noted by the Tribunal that the words "good character", used in section 501, had been held to refer to the "enduring moral qualities of a person". The enduring moral qualities of a person necessitate objective assessment and are to be proved as a matter of fact (Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at 94).
The relevant direction made under section 499 of the Act is Direction No 21, signed by the Minister and dated 23 August 2001. The Direction, as here particularly relevant, provides (T6, pp28-38):
"PART 1 – APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the character test
1.1 Non citizens who are being considered under section 501 must satisfy the decision-maker that they pass the character test…
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the character test, subsection 501(1) provides the authority to refuse to grant a visa…
1.3 There are four grounds against which a non-citizen may be considered to not pass the character test under subsection 501(6).
…
Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the character test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all relevant circumstances of a particular case, including an evidence of rehabilitation and resent good conduct.
…
Subparagraph 501(6)(c)(ii) – past and present general conduct
1.9. In considering whether a non citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors constitute a failure to pass the character test.
…
b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a progress document or made a false of misleading statement;
…
PART 2 – EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the character test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The government is mindful of the need to balance a number of important factors in reaching the decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations… Decision-makers must have due regard to the importance placed by the government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant consideration.
PRIMARY CONSIDERATIONS
2.3. In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and the members of community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian community
…
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 a nature of 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 deterrent).
a. the seriousness and nature of the conduct
2.6 It is a government view that following are examples or offences, which are considered by the government to be very serious:
…
(c) …providing certain false or misleading information about a marital, defacto, or interdependency relationship …or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor itself, general deterrence is an importance factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen,…
- in assessing the compassionate claims of the Australian partner,… decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens) ..."

THE RELEVANT FACTS

The Review Applicant was born in the Philippines on 14 of August 1966. He entered Australia in 1996 as the husband of an Australian resident. He has worked as a stock controller for an optical supply company since that time. He was first married in Australia on 23 January 1996, the same being dissolved upon application of his then wife Flornida Pangan, the Degree Nisi becoming Absolute by order of the Family Court of Australia on 21 of December 1998. There are no children of the marriage.
The Review Applicant and the Visa Applicant first met on 14 of August 1998, commenced a relationship on 23 of September 1998 and married on the 21 November 1999. The Review Applicant became an Australian citizen on 26 January 2001.
The Visa Applicant was born in the Philippines on 24 of March 1974. On 27 of June 1997 she entered Australia on a three months visitor's visa, the same not permitting her to obtain employment while in Australia. Five weeks later on 4 August 1997 she lodged a protection visa application, in an annexure to which she stated in her own handwriting that consequent upon her involvement in an election in the Philippines in May 1996 and a court case that ensued alleging electoral fraud, she started to receive death threats, with even her family being affected. The application was rejected on 29 of August 1997. The Visa Applicant forthwith appealed the decision to the Refugee Review Tribunal, which on 1 June 1998 affirmed the rejection decision. On the same date the Visa Applicant sought ministerial intervention pursuant to section 417 of the Act. In her application to the Refugee Review Tribunal and to the Minister, the Visa Applicant repeated her allegation of death threats. The application for intervention was declined on 13 November 1998. In her letter of 1 June 1998 to the Minister she stated:
"…
If I go back to my country my life will be in danger because of the threats of the winning candidate. Until now they looking and after with me just like they did to my co teacher, they also accept a death threat, they don't know what they doing now even the family are scared.
…and it's really very hard to be alone and far from your family, but I have to sacrifice for the sake of our future. Upon goin [sic] back to my country I don't know what will going to happen. From here in Sydney I feel very safe…" (T12, pp87-88)
On 9 March 1999 the Visa Applicant wrote in person to the Minister. Repeating her request for ministerial intervention and reasserting her earlier claims, she stated:
"…Myself claim that I am witness in switching of ballot boxes and were talking about politics and of course there is a politician involves in this matter. I claim that there were senior figure who was charged in this matter and I was placed in Witness Protection Program me by the Human right commission…
I claim that they lost my Protection and since the [sic] I start to received death threats.
I claim that those who conducted the switching will harm to prevent from publicing [sic] their involment [sic].
I believe that I may claim for protection deserve consideration on humanitarian grounds…I was received an information that the military authorities and defeated politician are not happy about the result of the elections.
I was apprehensive that if I returns to my country now, those military and politicians who were involved in the switching would take advantage of the unstable situation in our country to carry their threats to harm and I would considered as one of the casualties of post election…
It is in the public interest that I be granted a protection visa. In the alternative I request the Honourable Minister to allow me to remain in Australia…" (T17, pp109-110)
The intervention was declined on 6 May 1999.
The Visa Applicant remained in Australia but was eventually taken into custody on 3 November 1999 on a surety of $4000 being afforded by the Review Applicant. She was granted a bridging visa, she not to work and to depart the country by the 21 November 1999. The visa was extended and she left with the Review Applicant on the 28 January 2000.
On 17 February 2000 the Visa Applicant made her present application for a spouse visa based on her marriage to the Review Applicant on 21 November 1999, the same being refused on 6 September 2000.
The Visa Applicant was interviewed in Manila by an officer of the Respondent on 17 February 2000 and 6 September 2000. During the course of the latter mentioned interview she admitted or stated that:

she applied for a visitor's visa for the express purpose of obtaining work and earning money to support her family in the Philippines;
she worked throughout her period of stay in Australia and " made good money";
although she was advised by friends what to write, she wrote the "story" in support of her protection visa application herself and lodged it herself;
no aspect of this story written in support of her application had any truth; she knew it was wrong but wanted to work to support her family;

she was assisted in her endeavours by a friend, Zanaida;
she perpetuated the false story; and
she was aware that the story was fabricated at the time she signed the application form.

EVIDENCE AT THE TRIBUNAL HEARING

The Visa Applicant in the evidence before the Tribunal admitted or stated that:
·     she started work in Australia at a laundry on 16 October 1997 and remained there for no less than one year. She also worked for the Review Applicant's present employer, from 23 November 1999 to 25 January 2000;
·     "someone" told her to apply for a protection visa; she applied because of help given to her. The same person helped her in the application to the Minister. She did not otherwise identify "the someone";
·     the application forms, the annexure and letters to the Minister were all written by her. Claims made in these documents as to death threats were not true;
·     she knew the visitor visa did not give her a right to work;
·     she came to Australia with the intent of applying for a job;
·     she was assisted by the person " Zanaida" in filling out the protection visa application; " I wrote, she dictated the answer";
·     the claim to have been subject to death threats was not true;
·     the claim of being " scared to go back" to the Philippines was not true;
·     she did not really believe, and indeed knew that she was not a refugee;
·     when she applied for refugee status and told of death threats, this was not true. She " lied" to the Respondent during the interview;
·     in continuing to claim that she was in fear consequent on death threats, she lied to the Refugee Review Tribunal;
·     when giving oral evidence to the Refugee Review Tribunal, she repeated the claims which were not true;
·     claims that her life was in danger were not true;
·     according to her, the Review Applicant did not know anything about her refugee visa application, only that she was not a resident. Yet the Review Applicant said in his evidence that the Visa Applicant told him of her claims in the refugee application not being true, this sometime in August 1998; and
·     she did not use a migration agent, had not discussed with her husband using a migration agent, or told him she had. Yet in his evidence (Exhibit A, paragraph 2) the Review Applicant said:
"My wife had tried to stay in Australia through bad advice of unqualified friends in the migration practice and procedure. This was compounded by migration agents who wanted to profit from her vulnerable predicament by taking advantage of her".
The Tribunal does not accept the latter to have been the case. The Visa   Applicant well knew what she was doing and that her claims were not true.
The Review Applicant in his evidence before the Tribunal stated or admitted:

he had an expectation that since the Visa Applicant left Australia of her own accord that she would be able to come back;
he has been working up to ten hours a day and more, sometimes up to six days a week, to earn the money to assist his wife and support himself. He says he has no social life;
in the year 2000 he visited the Philippines on three occasions to see the Visa Applicant. He is now unable to afford such a visit;
he was aware that the Visa Applicant " did papers" to stay in Australia longer and work;
he did not question the Visa Applicant as to why she had thought she was a refugee;
he knew in August 1998 and September 1999 that the Visa Applicant did not have permission to work;
the Visa Applicant told him sometime in 1998 that her claims made in the refugee application were not true;
if the Visa Applicant is not granted a spouse visa he would not go to live with his wife in the Philippines. He prefers to live in Australia. He is the only one supporting his family. He would be "forced" to get a divorce from the Visa Applicant;
he was not aware that the Visa Applicant did not use a migration agent; and
he knew the Visa Applicant had made false migration claims.

AS TO THE CHARACTER OF THE VISA APPLICANT

Evidence was tendered as to the appreciation that others have of the Visa Applicant. In October 2000 her parish priest spoke of her church attendances and her " good moral character". The Barangay Captain said that he knew her personally and that she had " never been involved in any activity contrary to good morals or in breach of the law". The Head Teacher of her school spoke well of her. These subjective assessments of the character of the Visa Applicant are noted by the Tribunal. No one of the referees was made aware of the lies or misleading statements made the Visa Applicant in connection with her visa application.
Whilst it was alleged on her behalf that she was sorry for her past misdeeds, there was not any evidence of the Visa Applicant herself showing "genuine contrition for her past breaches of Australia migration law". Any sorrow or contrition expressed by her was in respect of the position in which she now finds herself, that is, separated from her husband, and not otherwise. She was not, as contended, misguided by her immigration options.
As detailed earlier in these reasons, the Visa Applicant sought a visitor visa to travel to Australia, with the intention of overstaying and working illegally. She lodged a protection visa application that included false claims; she lodged an application to the Refugee Review Tribunal for review of the decision to refuse a protection visa and maintained the false refugee claims. Maintaining such false claims she applied to the Minister for intervention and later reasserted the false claims for refugee status again to the Minister. She continued to overstay and work illegally in Australia, departing only after she was located and detained by compliance officers. It is clear on the evidence that the Visa Applicant engaged in conduct the like of that referred to in Direction 21 in that being a non citizen and in connection with her application for the grant of a visa she provided a false and misleading statement and made false and misleading declarations about her character or conduct. This conduct continued until recent time.
The Tribunal is satisfied having regard to the Visa Applicant's past and present general conduct that she is not of good character.
As earlier mentioned the Tribunal does not find that the Visa Applicant has expressed remorse for her conduct. Any expression of sorrow relates to the domestic situation in which she now finds herself.

THE DISCRETIONARY CONSIDERATIONS

The Tribunal is satisfied that the Visa Applicant does not pass the character test. Nevertheless it has a discretion to decide whether or not to allow the Visa Applicant to enter Australia. In exercising this discretion, it is to have regard to a number of considerations as outlined in the Ministers Direction 21.
The conduct of the Visa Applicant in making false statements in support of her relevant applications is considered as being very serious. The Visa Applicant admitted that she had discussed her position with another person or persons. There is evidence before the Tribunal that conduct, the like of that engaged in by the Visa Applicant is and was not isolated.
The presenting of the false documents in support of making a false and misleading statement in connection with her entry into and stay in Australia is also considered by the Respondent as being of a very serious nature.
Engaging in conduct the like of that above described is regarded in the context of the exercise of the discretion as being a primary consideration. This view is maintained by the Tribunal. Immigration malpractice, the making of false and misleading statements to the Respondent and officers of the Respondent, the Refugee Review Tribunal and the Minister on more than one occasion cannot be regarded as other than a flagrant disregard of the migration law of Australia. The Visa Applicant admitted that her primary intent in coming to Australia was to obtain employment, and remit monies to the Philippines.
As already mentioned the Visa Applicant by her conduct displayed a disregard for the migration law and was dishonest in obtaining an advantage for herself. This conduct of the Visa Applicant extended over the whole period she was in Australia.
Being satisfied that the above detailed adverse conduct of the Visa Applicant is to be regarded as of a very serious nature, that she discussed her position with at least another person and that this conduct was not isolated, refusal of a visa to her would indicate to others who might seek to engage in like conduct that the same is not acceptable to the Australian community. A non- citizen should anticipate that if he or she engages in conduct the like of that perpetuated by the Visa Applicant, that a visa will not be granted.
Again non-citizens as with citizens are expected to respect and obey the laws of Australia. The Visa Applicant did not do so and acted in such a way as to attract the offence provisions contained in the Act. Whilst these proceedings are in no way penal in their purport and intent, the Tribunal must pay heed to the fact that the Australia community does not accept non-citizens amongst it who breach its laws.
The Visa Applicant lives in the Philippines. She has her parents, two sisters and a brother living with her. As well she has six brothers and a sister living elsewhere in the Philippines. She says that she is the only " bread winner" and that the Review Applicant is helping her financially. The Review Applicant's mother lives in Australia, his father and married brother, two aunts, one uncle and four nieces are in the Philippines.
It is true that in the event of the visa not being granted to the Visa Applicant, that her husband, the Review Applicant will be adversely affected. It is said that he is innocent of the predicament in which the Visa Applicant finds herself. This is true to an extent but he was aware, on the evidence, as to the status of the Visa Applicant at the time he married her, and was aware that she had sought to rely upon her alleged refugee position in aid of obtaining a visa. He was aware that her allegations were untrue. He has said that he will not return to the Philippines, preferring to live in Australia even if this would result in a divorce.
It was said on behalf of the Visa Applicant that if she is permitted to reside in Australia with the Review Applicant, that his influence upon her will ensure that she does not engage in conduct having an adverse effect on the community. This may be so but on the evidence before the Tribunal, the Review Applicant was aware of her conduct as early as August 1998, yet they continued their association and married in November 1999. At the time of their marriage in November 1999 the Review Applicant was fully aware of the position in which the Visa Applicant then found herself. It might well have been as he stated that he anticipated that once they were married, his wife would receive favourable consideration so far as her migration to Australia was concerned. This expectation did not pay heed to the misleading conduct of and false statements made by the Visa Applicant.
It was submitted on behalf of the Applicant that the Visa Applicant could not be described as an "undesirable element" and " therefore the Tribunal is required to err in favour of the Visa Applicant". The task of the Tribunal is to consider the matters referred to in the Ministers Direction in so far as they are relevant, to measure the one against the other giving each appropriate weight and in due course come to the correct or preferable decision. It is not a matter of "erring" in favour of an Applicant.
It was further submitted that refusal of the Application would impact on the Visa Applicant's family and the Review Applicant, his ties to the Visa Applicant's family and his role in supporting her overseas. It was submitted that the Tribunal should aid the "preservation of families, by the reunion of internationally separated families … without requiring a forced departure of an Australia citizen". This is a consideration. It is to be given appropriate weight.
FINAL SUBMISSIONS AND DECISION

It has already been indicated in these reasons that the Tribunal finds the Visa Applicant not to be of good character. Mention has also been made of the primary and other considerations, which are to be taken into account in the exercise of the discretion vested in the Tribunal.
It was submitted on behalf of the Respondent that the serious misconduct of the Visa Applicant earlier referred to, her more recent conduct and the attitude she has displayed to her past conduct may only reinforce the appropriate finding of not of good character. Her contrition relates to the position in which she now finds herself rather then in an expression of sorrow or remorse for her past misconduct. She sought to minimise, as did her counsel, the gravity of her false and misleading statements. The Tribunal accepts these submissions.
The misleading conduct of the Visa Applicant is serious. She displayed a basic disrespect for the law of Australia, and like conduct on the part of others is to be discouraged. The Australian community expects no less.
The hardship which the Review Applicant and Visa Applicant have experienced by reason of their separation is accepted by the Tribunal. However, as earlier indicated the parties were aware of the position in which they would find themselves if they married, even be it that there might have been an expectation to the contrary. The Visa Applicant worked illegally in Australia and applied for refugee status only in aid of her being able to remain in this continuing work and earn money.
The Tribunal is satisfied taking into account the considerations earlier referred to, and giving each of them appropriate weight, that the decision under review should be affirmed. It is true to say that the Visa Applicant brought upon herself the situation in which she is now placed. The Review Applicant was aware generally, if not with particularity, of the situation in which the Visa Applicant by dint of her conduct would find herself. The need to protect the Australian community, the expectation of compliance by non-citizens with the migration law including relevant regulations together with the need to show that advantages are not available by use of false and misleading statements outweigh the hardship that might be incurred by the parties.
According the decision under review is affirmed

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, QC, Deputy President
Signed: R Quinn     .....................................................................................
  Associate
Date/s of Hearing  5 September 2001
Date of Decision  28 September 2001
Counsel for the Applicant        Mr I N Asuzu
Solicitor for the Respondent    Mr N Cureton

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Citations

Sandiongco and Minister for Immigration and Multicultural Affairs [2001] AATA 823

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Grass v Minister for Immigration and Border Protection [2015] FCAFC 44