Sarenas-Sy and Minister for Immigration and Multicultural Affairs
[2000] AATA 977
•9 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 977
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/286
GENERAL ADMINISTRATIVE DIVISION )
Re MIRAZELLE SARENAS-SY
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr D. Chappell, Deputy President
Date9 November 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 309 spouse visa – citizen of the Philippines – not a person of good character – past and present general conduct - false passport – assumed name – lodgement of application for a protection visa – application false – application refused – request for ministerial intervention – request refused – continued working illegally – allegation of malpractice on the part of migration agent – consideration of other general conduct – not a person of good character – consideration of exercise of Tribunal's discretion – consideration of the need to protect the Australian community – serious breaches of the immigration law – need to send a strong deterrent message – consideration of the legitimate expectation of the Australian community – behaviour not rewarded – consideration of hardship for applicant – does not outweigh – decision affirmed
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, & May 1997)
Irving v Minister for Immigration, Local Government and Multicultural Affairs (1996) FCR 422
Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187
Esguerra v MIMA [2000] AATA 148
REASONS FOR DECISION
BACKGROUND
Dr D. Chappell, Deputy President
Application and Hearing
This is an application by Ms Mirazelle Sarenas-Sy (the review applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to refuse to grant to her husband, Mr Armando Sy (the visa applicant), a subclass 309 (spouse) visa. The refusal was based on a finding that Mr Sy was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Ms Sarenas-Sy represented herself at the hearing. Both Ms Sarenas-Sy and Mr Sy gave personal testimony to the Tribunal. The following witnesses also testified on behalf of the applicant:
Elna Lutaos
Herminia Sarenas
Fely Padua
Federico SarenasMs Adele Connor, from the Australian Government Solicitor, represented the Minister for Immigration and Multicultural Affairs. Mr Ross McGarvie gave personal testimony on behalf of the respondent.
The Tribunal had before it documents filed for the purpose of s37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The following exhibits were also received into evidence on behalf of the applicant:
Exhibit No. Description Date
A1 Certification from Augusto Cezar P. Sarmiento Undated
A2 Certification from Roberto A. Sy 11/5/2000
A3 Letter from Winston Capati 20/5/2000
A4 Letter from Emily Sy-Barba 9/5/2000
A5 Letter from Elna Lutaos 14/7/2000
A6 Letter from Fely Padua 30/6/2000
A7 Letter from Herminia P. Sarenas 20/7/2000
A8 Police Clearance relating to visa applicant 4/5/2000
A9 Certification from Atilano Huaben B. Lim 20/3/2000
A10 Letter from Isabel P. Sarenas 2/5/2000
circumstances leading to visa refusal
The following general facts, and chronology of events, which led ultimately to the refusal by the respondent of the visa sought by Mr Sy were not in dispute between the parties. Mr Sy was born in the Philippines on 29 January 1964. Mr Sy grew up in that country, completing his high school education in 1986 and graduating from the University of the East with a Bachelor of Electronics and Communications Engineering (T: 200).
On 23 December 1987, Mr Sy arrived in Australia on a visitor's visa that was valid for six months. That visitor's visa, together with his passport, was issued in the name of Joseph Apolinario (T: 74). The visa expired on 4 June 1988 (T5: 51; T6: 74) but Mr Sy continued to reside in Australia as an unlawful citizen and to work.
On 7 July 1996, Mr Sy lodged an application for a protection visa. That application was lodged in the name of Joseph Apolinario (T5: 59, 69). In response to the question asked on the first page of the protection visa application, "what other names have you been known by?" Mr Sy stated "Armando Sy" and "Anthony Chau" (T: 48). The application also contained a statement about why Mr Sy had left the Philippines:
I arrive in Australia on December 23, 1987 I had applied for a tourist visa through a travel agent and a consequence did not have to visit the Australian Embassy in Makati. At the time of my departure, President Ferdinand Marcos was overthroned [sic] in Feb. 1986. Corazon Aquino despite a promised [sic] of reformed [sic] and bringing Marcos cronies to justice did very little except talked. The New Peoples Army was still requiting [sic] new membership which would peaked [sic] in 1988. The Muslim Separatests [sic] known as the MNLF were tying down large numbers of the military and police. The Catholic church through Cardinal Sin was influencing the policies of the Aquino government but intrenced [sic] corruption made any reformed [sic] impossible. Civil rights abuses continued against these people in custody or prison continued. Extra judicial killings also known as salvaging indicate a lack of confidence or bypassing of the legal justice system. I believe living under a system where I cannot trust the integrity of the process of law & order. The Philippine army is used as an instrument of oppression against the Philippine people who see it as an army of occupation. I do not wished [sic] to returned [sic] the Philippines if I can obtained [sic] a legal status in Australia.
.
(T: 53-54)
With regard to the fears Mr Sy had of returning to the Philippines, Mr Sy stated:
If I go back to the Philippines, I believed [sic] that I will trouble for my political believe [sic] against the Philippine government policies headed by Fidel Ramos. Ramos was a former crony and government Minister. Despite his attempts to introduce anti-terrorists legislation in January 1996 to give him powers similar to Marcos under martial law President Ramos wants to extend his current presidency by scaring the Philippine people into believing that terrorism must come from within the Philippine itself.
I also have a deep concern of how I will explain to the immigration authorities in Manila following my return why I used a photo substituted passport to leave the Philippines and why I used that name to obtain an Australia visa. I fear that not only will I be questioned but I will be detained in custody without any charges being laid while they investigate my background and through identity. This will not be a quick process and I fear a long period of imprisonment and human rights abused [sic] while Im [sic] in custody
(T: 54)
When asked who he thought would mistreat him should he return to the Philippines, Mr Sy provided the following response:
The security Police attached to the international airport in Manila following my return to the Philippines. I also fear persecution by elements of the police and military if I expressed my long felt political beliefs in public places.
(T: 55)
Mr Sy gave the following reason for holding that belief:
I believe that the authorities will harmed [sic] me as a direct result of leaving the Philippines with false documentation. They will most certainly prosecute me as a result of this action and I am concerned that they will make an example of me to other Filipinos who followed a similar path of action.
(T: 55)
On 29 July 1996, Mr Sy applied for a Bridging Visa C. Mr Sy again used the name Joseph Apolinario (T6: 71). That visa was granted on 8 October 1996 (T10: 85).
On 23 September 1996, Mr Sy approached the Philippine consulate and obtained a passport in the name Armando Sy (T20: 130). On 17 October 1996, Mr Sy prepared a Statutory Declaration stating that:
… I have been using the alias of Joseph Apolinario to travel to Australia under a photo-substituted passport. I filed an application for a class 866 protection visa under this name. Following advice from my migration agent I have changed my name back to my original identity of Armando Sy. I wish to resume my real identity.
(T: 92)On 4 December 1996, Mr Sy's application for a protection visa was refused by Mr Ross McGarvie, the Minister's delegate. On 10 December 1996, Mr Sy applied for review of the delegate's decision by the Refugee Review Tribunal (the RRT) (T: 108). Mr Sy gave personal testimony to the RRT by using a videolink (T: 108). On 5 September 1997 the RRT handed down a decision affirming the delegate's decision to refuse a protection visa to Mr Sy (T14: 107-114). In his statement of reasons justifying this decision the RRT Member stated the following:
ASSESSMENT
Credibility
By the use of at least two false names, the applicant has raised obvious doubts as to credibility. I find his explanation of how he came to use a photo-substituted passport in a false name totally lacking in credibility. I also do not accept that his fear of return to the Philippines arises for the reasons given. I observe that he approached the Philippine authorities in Australia and gave them the name "Armando Sy", upon which they issued a passport to him in that name. He was unable to answer my question why he did this if he was afraid of the Philippine authorities discovering his use of false documentation.
Prospect of persecution
The applicant was sent a copy of cable MN9006 of 2 November 1995 from the Australian Embassy, Manila. This cable confirms that Philippine citizens who overstay their visas are not subject to punishment on return. The applicant did not contravert [sic} this information. The claim is, in any case, not Convention-related.
I consider that there is not a real chance that the applicant will face persecution for his use of a false passport, given his willingness to approach the Philippine authorities and disclose his real name. Even if he did, this would be punishment for a criminal offence, not persecution for a Convention reason.
Although it is true that there is much corruption and crime in Philippine society, and that some human rights abuses take place there, this alone does not bring a Philippine citizen within the terms of the Convention. The applicant has not shown that he personally or any group to which he belongs faces a real chance of persecution. He has no profile of any kind. The political demonstrations in which he participated were evidently many years ago and directed against a different government from the one now in power. He agrees that he has never suffered any human rights abuses in the Philippines, and there is no evidence that the Philippine Government persecutes people for expression of political opinion (see, again, cable MN9006).
CONCLUSION
The Tribunal finds that the applicant does not face a real chance of persecution in the Philippines at the present time or in the foreseeable future for any Convention reason or reasons. Therefore, he does not have a well-founded Convention-related fear of persecution.
DECISION
The Tribunal is not satisfied that the applicant is a refugee, and affirms the decision not to grant a protection visa.
(T: 113-114)On 17 October 1997 a request was made by the visa applicant's migration agent, Mr David Coote of John Lingham & Associates Pty Ltd., on Mr Sy's behalf, for the Minister to exercise his public interest power under s417 of the Act following the unsuccessful RRT review. In making this request Mr Coote stated that:
Reason for Ministerial:
In the circumstances the Tribunal is satisfied that there has been compliance with the provisions of s425 and has proceeded to a decision on the material already before it. The applicant claims that he fears serious harm due to continuing political violence in the Philippines; the prevalence of corruption; and government policies such as the resettlement of Christians in Muslim enclaves.
He further claims that he will be interrogated, and possibly detained, if he returns to the Philippines, while investigations are conducted into any criminal or political reasons he may have had for leaving the Philippines. He also claims that he will be punished for having overstayed his visa in Australia.
Yours faithfully,(Sgd) David Coote
DAVID COOTE
Migration Reg.No.77328
(T: 115)
On that same date, Mr Sy applied for a Bridging Visa E. The application for this bridging visa was again made in the name of Joseph Apolinario (T18: 120). On 18 December 1997, Mr Sy lodged another application for a Bridging Visa E. This latest application was lodged in his own name. The application for a Bridging Visa E was granted by the respondent to Mr Sy, in the name of Armando Sy, and was valid until 18 March 1998 (T20: 130). Under the terms of that visa Mr Sy was not allowed to work. On 28 January 1998, the Minister decided not to consider exercising his discretion under s417 in favour of Mr Sy (T20: 129). Mr Sy's migration agent was notified of this decision on 19 February 1998.
Prior to this determination, on 17 January 1998, Mr Sy and Ms Mirazelle Sarenas-Sy were married (T23: 141). Subsequent to this marriage, on 18 March 1998, Mr Sy became an unlawful citizen (T: 179). On 21 December 1998, the law firm Parish Patience Solicitors wrote to Mr Sy referring to his participation in a class action which in the words of Mr Sy's solicitors, was designed to "appeal against the discriminatory nature of the ROSCO amnesty" (T: 145). That letter requested a further monetary contribution from Mr Sy if he wished to continue his involvement in the class action law suit. On 20 February 1999, Mr Sy applied for a Bridging Visa E (T22). Mr Sy indicated on that application form that on 18 March 1998 he had applied for a Bridging Visa B and that he was requesting an extension "under the ROSCO case" as no decision has been reached in that matter (T22: 135). Mr Sy also indicated that he was planning on returning to the Philippines with Ms Sarenas-Sy in order to "relodge a proper spouse application" (T22: 135). A bridging Visa B was granted by the Department to Mr Sy which was valid until 7 March 1999. Under the conditions of the visa Mr Sy was not allowed to work (T: 179). On 6 March 1999, Mr Sy departed Australia (T22: 140).
On 10 March 1999 Mr Sy lodged a subclass 309 (spouse) visa application with the respondent's officials in Manila (T24). On 10 March 1999 Mr Sy was interviewed in Manila by an Australian immigration officer, regarding his visa application (T: 300-302). In the course of that interview Mr Sy disclosed that the application for a protection visa had been completed by a migration agent to whom he had been referred, Mr John Lingham. He also stated that the claims he had made in the protection visa application were false and had been fabricated by Mr Lingham (T: 300). On 6 May 1999 the Department of Immigration and Ethnic Affairs (the Department) wrote to Mr Sy giving him an opportunity to address the Department's concerns with regard to the good character provisions of the Act (T28). The letter written by Mr Sy in response stated the following:
In 1987 I wanted to visit Australia, I then approached a travel agency in Ermita to obtain a passport and visa for travel to Australia. I would like to emphasise that at no time did I request the travel agent to obtain a false passport or visa. When the agency contacted me I was advised that the only way to travel to Australia was on the passport issued in the name of Joseph Apolinario which they had prepared with my photo in the passport. I then foolishly accepted this and travelled to Australia not realising the problems that I would create for myself in the future. On arriving in Australia and enjoying the lifestyle of Australia, I sought professional advice in becoming a permanent resident of Australia. The company John Lingham & Associates who were Registered Migration Agents at the time advised that I should lodge an application for Refugee status in Australia. The application was then lodged, on refusal of this application the same company advised that I should lodge a further application for review of the decision. I had advised the Agent from the beginning that I entered Australia on an incorrect passport, The Agent then advised that the applications should be lodged in the assumed name. Both applications stated that I had an assumed name as the grounds presented for my application were based on my fear of returning to the Philippines, having left on an incorrect passport. The same agent also advised me to appeal to the Minister. This subsequent application was prepared by the Agent and lodged by him. It should be noted that the Agent has since been deregistered. No knowing what to do I sought a further advice from a registered migration agent, (Parish Patience) he advised that I should become part of the ROSCO Class action. Unfortunately this again was incorrect advice as I subsequently found that even though I had paid a substantial amount of money to the company to be included in the action, I was advised by the Compliance officer at the Rocks that I had not been
Wanting to legalise my status in Australia I personally sort [sic] to obtain a correct passport from the Philippine Consulate in Sydney. I had also met a wonderful lady and felt the need to get my status correct for our future life together. Through our contact with the Church we were introduced to the Australian office of Austhai Pty Ltd and their Registered Migration Agent, Mr Godkin advised that I should exit the country and apply with a new application from off shore. We immediately made the necessary arrangements and travelled to the Philippines with my wife who is still here with me while my application is being processed.
In conclusion I realise the many mistakes I have made over the past years and am anxious to normalise my life. In retrospect I feel that much of the advice I have received from so called professionals has been incorrect, from the Travel agency in Emita to the two Migration Agents in Sydney.My wife and I want to settle down, she has a good employment in Australia and I am anxious to be able to present my qualifications to Australian employees and gain employment under my real name and qualifications.I have now made what I believe to be the correct steps to do this and have admitted my mistakes, and would request that you see fit to grant me a visa so my wife and I can return to Australia and build our lives together for the future.
(T: 293-294)On 11 January 2000 the Minister's delegate, Ms Sally Raey-Young, refused Mr Sy's visa application on the grounds that he had failed to pass the character test. The Minister's delegate also declined to elect to exercise her discretion not to refuse the granting of the visa under s501 of the Act. In reaching this decision Ms Raey-Young noted in her assessment that she has taken into account the following considerations regarding the past general conduct of Mr Sy:
He travelled to Australia on a false passport, overstayed his visa and worked illegally from 1988 to 1996, some 8 years making no attempt to resolve his immigration status;
He freely admitted to knowingly providing false information in his application for a PV;
He knew and has freely admitted that in lodging the PV application he was wrongly applying for Australia's protection as a refugee;
He freely admitted that he did not consider he was a refugee at any time prior to the lodgement of his PV application or, at any time during the processing of his application;
He did not advise DIMA or the RRT at any time during the processing of his PV application, or at any other time, that his claims for protection were bogus;
Mr Sy freely admitted that the sole purpose for applying for a PV was to extend his stay in Australia for as long as possible so he could legally work under the provisions of a Bridging Visa associated with his PV application.
12.I have taken into account the following considerations in assessing the present general conduct of Mr Armando Sy:
Mr Sy is married to his sponsor Ms. Mirazelle Sarenas-Sy.
13.I find that Mr Sy was not truthful in his dealings with the department with respect to his entry into Australia on a false passport, his decision to remain and work in Australia illegally and his application for a PV. I have taken into account that significant resources were deployed to resolve Mr Sy's status in Australia. I find that Mr Sy's general conduct demonstrates a blatant disregard for Australian immigration laws.
14.Having regard to Mr Sy's past and present general conduct in Australia and based on the evidence before me I find that Mr Sy is not of good character in relation to his past and present general conduct and as such fails to satisfy me that he passes the character test.
(T: 306-307)
On 24 February 2000 Ms Mirazelle Sarenas-Sy, the review applicant, sought a review by the Tribunal of the delegate's decision (T1).
LEGISLATIVE AND POLICY PROVISIONSIn order to be granted a subclass 309 (spouse) visa the applicant must satisfy the relevant public interest criteria, including item 4001 in Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under s501 of the Act to refuse to grant a visa.
Section 501 of the Act provides:(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…(6) For the purposes of this section, a person does not pass the character test if:
(c) having regard to either or both of the following:(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct
the person is not of good character;
Thus the issue which the Tribunal must determine is whether Mr Sy does not satisfy the character test for the purpose of s501(6)(c) of the Act. If the Tribunal is satisfied that Mr Sy does not satisfy this test then it may nevertheless exercise the discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Mr Sy.
Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction was given by the Minister under s499 of the Act on 16 June 1999 titled "Visa Refusal and Cancellation under Section 501 – No.17" (the Policy Direction: T5). The Preamble to the Policy Direction states, in part:
This Direction provides guidance to decision to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.
The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.
(T5: 44)Reference will be made later in this decision to those provisions of the Policy Direction which are relevant to the Tribunal's consideration of the present matter. But first the Tribunal turns its attention to the evidence presented concerning Mr Sy and the application of the character test under s501.
EVIDENCE
Past and Present General ConductAs noted it was the general contention of the respondent that Mr Sy does not pass the character test pursuant to s501(6)(c)(ii) of the Act on the basis of his past and present general conduct. Paragraph 1.9 of the Policy Direction has the following to say about the way in which decision makers should apply the character test under this particular head.
1.9 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:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
· engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
· continual evasion or non-payment of debt;
· continual disregard as to payments of family maintenance;
· involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or
· involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
(T:36)
The Policy Direction also indicates that:
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).
(T: 37)
In both its Statement of Facts and Contentions, and in the presentation of its case at the hearing, the respondent indicated that it was principally paragraph 1.9(a), (b) and (c) of the Policy Direction which were most relevant to Mr Sy. While not disputing this, the applicant's case proceeded on the basis that there were countervailing factors which would justify a finding by the Tribunal that Mr Sy did meet the character test.
Use of a False NameAs already noted, the fact that Mr Sy originally used a false name to enter Australia is not in dispute. It is also not disputed that Mr Sy continued to use that name in his dealings with the Department, including in his application for a protection visa. In his personal testimony to the Tribunal Mr Sy stated that before coming to Australia he had gone to see a travel agent in the Philippines (transcript 23 August 2000: 10). Mr Sy told the Tribunal that the travel agent:
… asked me to put a deposit which was around 10,000 pesos, so I gave them the money and all my details and that is what happened. After a while I lost contact with them so I just tried to ring them to follow up what happened to my papers and they said, they are still processing … After a while, after two months later, they said they have my visa, I was then happy that I already got my visa, and then when I went to see them, I had found out that they had substituted by photo on a different name, so I asked them what happened, and they said that is the only way, I could travel to Australia. I tried to argue with them, when I found out it was not going to happen I fully accepted their offer. That's all.
…
Then they asked me to pay the rest of the money, and they gave me the ticket, because it was also them who prepared my ticket as well as the passport, then on 23 December 1987, I left the Philippines to travel to Australia.
(transcript 23 August 2000: 11)
In cross examination Mr Sy told the Tribunal that he had no choice but to accept what the travel agent had done as they had taken his money and he was unable to retrieve it in the Philippines (transcript 23 August 2000: 12). The following questions were also put to Mr Sy by the Tribunal:
THE D.PRESIDENT: Didn't you think it was a little strange when you did go to the travel agent that they would ask you to go under a false name and with a passport which was not your own with a separate date of birth?
THE WITNESS: It was silly, you know, was really strange, yes.
THE D.PRESIDENT: Strange?
THE WITNESS: These people did, you know. Strange in a way like that, you know. I mean with a, you know, different name.
THE D.PRESIDENT: Did you think this was the normal way that people travelled overseas?
THE WITNESS: No, sir.
THE D.PRESIDENT: What was the normal way that people would travel overseas in your view?
THE WITNESS: They should have a, you know, correct name, you know on their passport.
(transcript 23 August 2000: 79)
Mr Sy also told the Tribunal that he had never heard of the name Joseph Apolinario prior to receiving his passport from that travel agent Philippines (transcript 23 August 2000: 12). Mr Sy told the Tribunal that he was aware that it was an offence under the Act to present a false document in order to gain entry into Australia (transcript 23 August 2000: 14).
Mr Sy told the Tribunal that he had attempted to notify the Department of his correct name by providing them with a copy of the statutory declaration quoted above (transcript 23 August 2000: 34-35). Under cross examination My Sy agreed that he used the name Joseph Apolinario after he had provided the Department with this statutory declaration in order to apply for a bridging visa (transcript 23 August 2000: 37). Mr Sy explained to the Tribunal that he had continued to use his assumed name because:
THE WITNESS: I haven't got a formal reply from them and my … name isn't Joseph Apollonario. If I give them Armando Sy they wouldn't find my file but I always, every time I called up Immigration I always tell them my real name is Armando Sy.
(transcript 23 August 2000: 37)
When questioned further on this point, the following exchange took place:
THE WITNESS: I give my – because when I had them, because I was reading bits out of my passport, I request, so I give it to them, they ask for my passport under my real name and then after that man did not give it to me. I haven't got my passport back ma'am until two days before I left Australia. So all the time ma'am they have my passport.
MR CONNOR: Yes it had. You didn't think to give them that passport number and using your real name?
THE WITNESS: Yes, ma'am.
MR CONNOR: And you're talking about the passport in the name od [sic] Armando Sy.
THE WITNESS: Armando Sy.
MR CONNOR: And so you didn't think to actually give them your real passport number or use your real name in that form in October 1997?
THE WITNESS: That's what happened. I got no response from them so if I put Armando Sy they wouldn't file it under Joseph, that's thy I didn't want to confuse everything.
MR CONNOR: You didn't think of trying to explain the situation to the department and use your real name?
THE WITNESS: I tried, that's what I asked them if I could just use my real name but I got no response. I have no proper response ma'am.
MR CONNOR: Are you trying to tell me that on the day, 17 October 1997 you asked someone in the Department of Immigration whether or not you should use your real name or an alias or your real passport or one- - -
THE WITNESS: Yes ma'am.
MR CONNOR: And they told you to use the false one? Is [sic] that what you're trying to tell me?
THE WITNESS: Sorry, ma'am?
MR CONNOR: Are you trying to suggest that they told you to use the false name rather than your true name?
THE WITNESS: I asked them permission but I got no response. So what, I mean, I just decided and just thinking of I don't know what to do. I was in the air, ma'am, I don't know what to do, because I got no proper response.
(transcript 23 August 2000: 37-38)
Later in the respondent's cross examination of Mr Sy further clarification of these issues was sought..
MS CONNOR: When you submitted the statutory declaration are you saying that you submitted the passport at the same time?
THE WITNESS: Yes, he kept my passport, ma'am, at the same time. That's because I went … and then you know I showed him my you know … together with my birth certificate, ma'am, and then my passport and then showed him my school ID and then to verify that I am really Armando Sy, that's because I want to use that name to work, you know, because I don't – I want to straighten out things, ma'am, I don't want to use any other – you know I want to go back to my life. So that's why I want to use the name Armando Sy but you know since then I had no reply from him informing me of whatever happen or like that or any formal a letter.
MS CONNOR: Okay. Had you completed an application for a bridging visa at the end of 1997 quoting that passport number?
THE WITNESS: Yes, most probably, ma'am. Yes, most probably because even I admitted to them the –they had my passport. I still have my photocopy, so most probably I just, you know, used the photocopy.
(transcript 23 August 2000: 66-67)
Working Illegally
Mr Sy told the Tribunal that his primary purpose in coming to Australia was to visit his cousins (transcript 23 August 2000: 14). When asked in cross examination whether he also came to Australia with the intention of gaining employment, Mr Sy stated that he had "enjoy[ed] the lifestyle" and so decided to "work" and "stay" in this country (transcript 23 August 2000: 14). Mr Sy told the Tribunal that he was aware that the nature of his visitor's visa prevented him from working (transcript 23 August 2000: 15) but that he had worked nevertheless (transcript 23 August 2000: 15). Mr Sy also stated that he introduced himself to prospective employers as Anthony Chau (transcript 23 August 2000: 14). Mr Sy told the Tribunal that he been employed as a machine operator, a stone mason, a process worker and a concierge (transcript 23 August 2000: 16) in the period from 1988 until 1996 when he first lodged his application for a protection visa. During that time Mr Sy also sent money back to his family in the Philippines (transcript 23 August 2000: 80). Mr Sy told the Tribunal that he had not advised the Department of his full time employment because he was "scared" (transcript 23 August 2000: 18). According to Mr Sy this information was not included in his protection visa application on the advice of Mr John Lingham, his migration agent (transcript 23 August 2000: 33). Mr Sy stated that he had a tax file number under the name of Anthony Chau and paid taxes on his earnings (transcript 23 August 2000: 18-19). Mr Sy agreed in cross examination that the use of the name Anthony Chau was to help him gain employment in this country without having permission to do so (transcript 23 August 2000: 20). Mr Sy told that Tribunal that he was aware that performing work in Australia without authorisation was an offence under the Migration Act (transcript 23 August 2000: 20).
Protection Visa ApplicationThe claims that were made by Mr Sy at the time of lodging his protection visa application have been set out in detail. In his personal testimony to the Tribunal Mr Sy stated that in 1996 he had sought advice from a migration agent, Mr John Lingham, with regard to the filing of an application for a protection visa (transcript 23 August 2000: 20). Mr Sy told the Tribunal that it was on Mr Lingham's advice that he used the name Joseph Apolinario on the protection visa application (transcript 23 August 2000: 22-23). Mr Sy said that he had been assured by Mr Lingham that it did not matter what name he used because he had already "declared that it was an assumed name" (transcript 23 August 2000: 22).
Mr Sy also described for the Tribunal the manner in which his protection visa was completed. The Tribunal was told that each of the answers provided by Mr Sy in his protection visa application has been dictated by Mr Lingham (transcript 23 August 2000: 21). Mr Sy stated that: "It [the protection visa application] was dictated to me but it is also true" (transcript 23 August 2000: 26). Mr Sy said that it was true that he feared going back to the Philippines as a result of the government corruption (transcript 23 August 2000: 23) and also because he had used a false passport to enter Australia (transcript 23 August 2000: 25). Mr Sy told the Tribunal both that: "Not all the claims are false, some of them are valid" and also that: "I [Mr Sy] was willing to believe that the application was valid with John Lingham" (transcript 23 August 2000: 73).
Mr Sy also gave evidence to the Tribunal that he was willing to use the services of an associate of John Lingham, after Mr Lingham himelf had been deregistered as a migration agent (transcript 23 August 2000: 87).
Other General ConductIt was not a matter of dispute between the parties that a genuine realtionship existed between Mr Sy and Ms Sarenas-Sy. Mr Sy gave personal testimony to the Tribunal about the way in which he had met Ms Sarenas-Sy. Mr Sy stated that he had originally met his future wife in August 1996 (transcript 23 August 2000: 70). The couple did not start their relationship, however, until August 1997 (transcript 23 August 2000: 70). Both Mr Sy and Ms Sarenas-Sy told the Tribunal that Mr Sy had told his future wife about his immigration history (transcript 23 August 2000: 70 and transcript 24 August 2000: 123). In particular, Ms Sy told the Tribunal that she was aware that Mr Sy had left the Philippines using a false passport that had been issued in a fictitious name; that Mr Sy had left the Philippines in order to visit his cousins and not because of any political views he held about the government and also that Mr Sy had been working in Australia illegally (transcript 24 August 2000: 123).
Mr Sy also informed Ms Sarenas-Sy that he had lodged a protection visa application (transcript 24 August 2000: 123). When asked in cross examination whether Mr Sy had ever mentioned his fears in relation to returning to the Philippines because of "his anti-governmental views" Ms Sy provided the following answer:
Yes, he did. He mentioned that. I know my husband when he told me about all this he was really very scared. Imagine that. He is really really scared because of all the things that he had done wrong. He knows that it is wrong. That's why he scared.
(transcript 24 August 2000: 123)Ms Sy told the Tribunal that she married her husband despite his immigration history because she loved her husband very much and that she considered him to be "a good man" with whom she hoped to make a life together (transcript 24 August 2000: 126). Ms Sy accounted for her husband's actions by explaining to the Tribunal that he was very scared and also had been acting on the advice given to him by his migration agent (transcript 24 August 2000: 128-129). When asked whether she would be willing to return to the Philippines in order to be with her husband in the even of him not being allowed to return to Australia, Ms Sarenas-Sy provided the following response:
That's why I actually made this appeal so that my husband can come back here in Australia so we can live here together. I haven't got any families in the Philippines any more and even I have relatives in there. They're all everywhere in the Philippines and it would be very difficult for me and my husband, especially for employment. Like for example he is actually earning 2500 every fortnight which is $100 equivalent here and if I go home there without work how he can actually surviving [sic] living in the Philippines.
You're willing to return to the Philippines, if this appeal is not successful, to be with him?---I, to be honest I actually fight it to the end.
…
Are you saying that you aren't prepared to go to the Philippines?---At the moment no because there is no life for us there in the Philippines. My family is here. I am established here. I've got a good work here so leaving everything behind. I don't think it is a good idea. That is why I actually appeal for this case to be reviewed because I want my husband to come back with me here and stay here in Australia.
(transcript 24 August 2000: 127)Ms Sy also told the Tribunal that the first time her husband was able to reclaim from the Department the passport provided to him by the Philippine consulate, in the name Armando Sy, was two days before the couple returned to the Philippines (transcript 24 August 2000: 131). The following cross examination took place in relation to that matter:
MS CONNOR: 18 October 1996. I suggest to you that he was given the passport back on the same day?---You mean when he actually – I can't understand the question, could you please repeat it.
Sorry, I will try and clarify it. I am suggesting to you that in fact your husband – obviously you can only give the answer that you know as to what he's told you or what you know, but I suggest that he was given the passport back, that is his passport in his own name, that he'd been issued with by the Philippine Consulate General, that he was given it back when he submitted the statutory declaration and other material on 18 October 1996?---Yes.
So he submitted it and received it back on the same day?---No, the passport you mean, no, he didn't receive it on the same day, no.
And I suggest that he having received it back at that time then had the passport with him when he applied for a bridging visa the following year in December 1997 and that it was in fact, if it was submitted at all at that time it was returned within as [sic] couple of days?---No, he never had the passport with him. The only time that he actually held the passport was to bring it to The Rocks, for the application, the Ministerial Appeal.
And I suggest also that when it came time for him to leave the country so that you could lodge your spousal visa application that, if he was required at all to submit the passport that it was in fact only taken by the department for a couple of days and then returned to him a couple of days prior to his departure?---No. I was never actually handed the passport with him and we'd been married and I haven't seen the passport with my husband. I was there and there is another witness as well.
(transcript 24 August 2000: 134)The Tribunal also heard from Mr Ross McGarvie who is presently a Client Service Manager with the Department. Mr McGarvie told the Tribunal that in 1996 he had been working for the Department in on-shore protection. Mr McGarvie told the Tribunal that he had handled the application made by Mr Joseph Apolinario (transcript 24 August 2000: 144). Mr McGarvie told the Tribunal that it was his normal practice where an applicant stated on a protection visa application that he had entered the country on one name and was in fact known by another name to "ask to see evidence of that" (transcript 24 August 2000: 145). Mr McGarvie told the Tribunal that the passport in the name of Armando Sy was such evidence. Mr McGarvie said that his normal practice would have been to copy the passport, make a note that he had seen the original and return the passport to the applicant (transcript 24 August 2000: 145). Mr McGarvie stated that he had not been able to review the original file for the purposes of this hearing but that it was his understanding that there was nothing on the file to indicate that he had kept the passport (transcript 24 August 2000: 145).
Mr McGarvie was then questioned in relation to Mr Sy's application for a Bridging Visa E on 18 December 1998. Mr McGarvie provided the Tribunal with the following information:
… I have to say it is not my area of expertise apart from the fact that I've been in the Department for six years and I have some understanding of procedure, however having said that, I discovered that the person who filled out the document number 128, is in fact deceased … So my inquiries couldn't go much beyond what's printed on electronic and the documents in fact you've given me. As to conclusions reached, it appears that on 16 December 1997, the date of that property receipt that Mr Sy has come to the Department, as opposed to being detained by compliance, he has come to the Department as an unlawful non citizen, he has attended the compliance area at the Rocks office. [The deceased] dealt with him, his passport, this is supposition to some extent, but it's the only one that makes any sense, I don't know if you want me to continue this supposition, that's the only thing I can do in the absence of Mr … not being with us any more. It appears as though he has taken the passport, that is the departmental officer has taken the passport on 16 December, and issued a receipt and at this time late '97 the Department was under seige [sic] if you like in relation to the number of people who were putting in section 417 or ministerial humanitarian intervention consideration requests. So the passport has been taken as far as I could tell, a receipt has been issued to Mr Sy in order that he had some evidence, that he had dealt with the Department if he was to be detected or to come into contact with officers, and he didn't have his passport with him, which showed a receipt, showed that he had some dealings, and it appeared as though that has been taken so that he could have a bridging visa E, of which the accompanying application, determined and granted in his favour, and that was done a week after the passport and visa had been taken, and I'm relying in part on the electronics here, it's right in front of me, in fact as I speak to you, which shows on 23 December 1997 a bridging visa E was granted to Mr Sy by the compliance section of the Rocks, and it's just not possible for me to say – arrangement would have been, if normal practice is any guide, "My Sy thank you for leaving your passport, we'll evidence the bridging visa E for you and you'll have to come back in a week to pick up your passport, and then you'll then have evidence that you're a lawful person, hang on to this receipt in the interim". It's not clear to me on the basis of what I've said on the system and on the basis of what I've said on the papers as to whether Mr Sy in fact returned and collected the passport. There are two possibilities, one is that Mr Sy did not come back and pick his passport up as would have been requested, and in fact it ended up being retained on file, awaiting him to come back and collect it. I don't have the physical file to look at here, and the other possibility is that he came back and collected his passport.
(transcript 24 August 2000: 147)
The following exchange also took place between the Tribunal and Mr McGarvie:
But the bottom line is that in between the time that he was an unlawful non-citizen, in essence from the records that you have before you, there was no attempt to directly seek him out and either detain him and/or deport him or notify him further about his unlawful status?---No, from what I've seen and I'm talking here again about December '97 contact, from what I've seen, it appears he contacted the Department. It appears we took his passport to evidence it and he never got back in contact with us again and I can say, that in terms of talking to the compliance officers in terms of the practice, that the practice is at the compliance counter when people attend to have a BE they are told about rights and responsibilities under that bridging visa. So, that's as far as I can take it.
(transcript 24 August 2000: 151)
The Tribunal received character references from a number of people who were familiar with Mr Sy in both Australia and the Philippines (See A1-A10). These referees indicated that Mr Sy was, in their opinion, a person of good moral character. Personal testimony was also provided by four witnesses concerning their knowledge of Mr Sy and his character. Ms Elna Lutaos said that she had know Mr Sy for more than ten years. Ms Lutaos told the Tribunal that Mr Sy was a "courteous, polite person" (transcript 24 August 2000: 86). Questioned by Ms Connor, on behalf of the respondent, Ms Lutaos said that she had not questioned Mr Sy about his immigration status, it was not something they spoke about.
Ms Sarenas-Sy's mother, Ms Herminia Sarenas, also an Australian citizen, gave personal testimony before the Tribunal. Ms Sarenas said that on first meeting Mr Sy she had thought of him as "a good man" (transcript 24 August 2000: 86). Ms Sarenas said that she was not aware of Mr Sy's immigration status at that meeting but that Mr Sy subsequently made her aware. Ms Sarenas said that this surprised her "because people like him will never tell you" (transcript 24 August 2000: 90). Ms Sarenas told the Tribunal that as a result of what Mr Sy had told her:
THE WITNESS … I believe in his honesty. I think he is an honest person to have the guts to tell me that his papers are not all right, it's really hard for a person like him. For a person like me, who is the parent, the mother, it's very hard to, you know, to decide on things like this so I left the decision to my daughter. But I gave her bits of advice and it's up to her, everything is up to her actually, I can't do anything about it.
(transcript 23 August 2000: 90)
Ms Sarenas also told the Tribunal that while she was aware that Mr Sy's "papers [were] not all right" (transcript 24 August 2000: 92) prior to the marriage, it was only after Mr Sy's marriage to her daughter that she became aware of the specifics of Mr Sy's immigration practices (transcript 24 August 2000: 94-95).
Ms Fely Padua also gave personal testimony before the Tribunal. Ms Padua stated that she was aware that Mr Sy's entry into Australia was not legal (transcript 24 August 2000: 103) although she did not "know the legalities of all the things" (transcript 24 August 2000: 106). Ms Padua said that she still believed him to be a person of good character (transcript 24 August 2000: 104). Ms Padua told the Tribunal that she did not believe that Mr Sy's conduct was responsible but that he had "tried to find ways to the right the wrong" (transcript 24 August 2000: 105).
Ms Sarenas-Sy's father was also called as a witness on behalf of Mr Sy. Mr Sarenas also told the Tribunal that Mr Sy was, in his judgement, "a very kind person, honest, sincere" (transcript 24 August 2000: 107). Mr Sarenas said that he was aware that Mr Sy had problems with his immigration status in Australia. It was Mr Sarenas' view that Mr Sy "made some foolish mistakes, but that's not good enough reason for him to be considered as a criminal and deprive my daughter of their right to live together" (transcript 24 August 2000: 113).
APPLICATION OF THE CHARACTER TEST
Submissions, Policy and Case LawThe meaning of the term "good character" as used in s501 of the Act is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court (see Minister for Immigration and Ethnic Affairs v Baker 1997 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs 1996 68 FCR 422 (hereinafter Irving); and Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 1277 (hereinafter Goldie).
In Irving Lee J gave the following description of the term "good character":
Unless the terms of the Act and Regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be provided as a fact whilst the latter is a review of subjective public opinion. See Clearihan v Registrar of Motor Vehicle (ACT) (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1009 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, see Re Davis (1947) 75 CLR 409 at 416, per Latham CJ at 416; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
(at 431-432)
The statement of Lee J was approved by the Full Federal Court in Baker and more recently by the Full Federal Court in Goldie. In the latter decision, in a joint judgment Spender, Drummond and Mansfield JJ said:
The concept of 'good character' in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.
(at paragraph 8)
In Baker the Full Federal Court also gave guidance concerning the way in which a person's general conduct should be taken into account when assessing whether or not they were of good character. The Full Federal Court said in that case:
We do not think there is any warrant for extracting from the broad word 'general' a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct as we understand the term, displayed but once or twice, may lay character bare very tellingly.
(at 195)In her written submissions, Ms Connor contended for the respondent that Mr Sy failed to pass the character test in light of the matters to be considered under paragraph 1.9 of the Direction, extracted above. In particular, Ms Connor contended that Mr Sy had contravened sections 234(1)(a)(b) and (c), sections 235(1) and (3) of the Act. Ms Connor further submitted that Mr Sy had provided a bogus document, being a false passport, in connection with a number of applications for the grant of a visa including the initial visitor's visa with which he travelled to Australia; a protection visa application and two bridging visa applications which were associated with the review process for a protection visa. It was also contended, by Ms Connor, that Mr Sy had made false and misleading statements in respect of his initial entry into Australia and with regard to the activities surrounding his application for a protection visa. In addition, it was contended that Mr Sy had made a false or misleading declaration on forms approved by the Department with regard to his character and conduct. These forms included both Mr Sy's protection visa application as well as his subsequent application for a bridging visa. In this regard it was submitted by Ms Conner that Mr Sy had, at the time of making an application for a bridging visa, a passport in his real name in his possession.
Ms Connor also contended on behalf of the respondent that there was little that could be considered by the Tribunal with regard to evidence of recent good conduct. Ms Connor submitted that Mr Sy's failure to ensure that his stay in Australia had been regularised in the period between 19 March 1998 and 20 February 1999 was indicative of Mr Sy's bad character. Further, the respondent submitted that Mr Sy's departure from Australia could not be considered as evidence of recent good conduct – it was simply the only lawful alternative open to Mr Sy at that time.
In her written submission to the Tribunal, Ms Sarenas-Sy, contended that her husband had not sought out a false passport with which to come to Australia. Rather, he was presented with such a passport by his travel agent and having expended his money and being "young and adventurous" he proceeded to travel to Australia without considering the consequences. Ms Sarenas-Sy contended that the trip made by her husband had been primarily to visit relatives but that he had ended up loving Australia because it was a country that gave him "the freedom to experience something that any decent human being yearns for". Ms Sarenas-Sy contended that while her husband knew that he was working in Australia illegally, that work was merely a means of supporting himself rather than being a "burden" to the Australian community. Ms Sarenas-Sy submitted that Mr Sy had wanted to correct the mistakes he had made and accept responsibility for his actions. In Ms Sarenas-Sy's submission Mr Sy attempted to regularise his status by lodging a protection visa application on the instructions of his migration agent, Mr John Lingham. It was Ms Sarenas-Sy's contention that her "husband would have believed whatever the agent told him" and also that Mr Sy "just wanted someone to help him with the legalities and show him the correct procedures". Instead, submitted Ms Sarenas-Sy he was "given false hope and promises".
The Tribunal's viewsWith the judicial benchmarks of Irving, Baker and most recently Goldie clearly in mind the Tribunal is more than satisfied on the evidence before it that Mr Sy fails to meet the character test as a result of the his past and present general conduct. There are a number of instances of general conduct engaged in by Mr Sy that lay his "character bare very tellingly". Those instances commenced with his use of a false passport and an assumed name in order to enter Australia. That conduct continued with Mr Sy's use of an assumed name with which to procure work which he knew to be illegal. This was conduct which also extended to overstaying the visa with which he had been issued, albeit in a false name.
The Tribunal also finds that Mr Sy filed a false application for a protection visa and that Mr Sy knew that application was false. Mr Sy may have had a fear of returning to the Philippines for reasons personal to him but these reasons are nowhere embodied in the Australian law with regard to refugees. Mr Sy told the Tribunal that the answers provided by him to the RRT were in fact answers dictated by Mr John Lingham, Mr Sy's migration agent. Mr Sy did not impress the Tribunal as a naïve or unintelligent witness. He has graduated from University with a specialist engineering qualification and has occupied positions of trust and responsibility in his employment both in Australia and now in the Philippines. The Tribunal believes that Mr Sy is a person who is willing to tell lies to the authorities when it is convenient and also to tell the truth when he believes it will further his own objectives. Mr Sy was also prepared to lie under oath to the RRT and then to pursue another avenue of review by the Minister when he failed to achieve his objectives before the RRT.
The countervailing factors offered on Mr Sy's behalf that he is now a person of good character have also been considered by the Tribunal. Among the witnesses who gave personal testimony about their knowledge of Mr Sy's character, Ms Elna Lutaos' testimony is given little weight by the Tribunal as Ms Lutaos was not aware of Mr Sy's immigration malpractice. The Tribunal has given due consideration to the personal testimony of the remaining witnesses who variously indicated that Mr Sy was "scared", "foolish" and willing to accept anything told to him by his migration agent. The Tribunal does not consider these explanations constitute counterveiling factors in the terms contemplated by the Direction. The Tribunal also notes Mr Sy's subsequent disclosure of his immigration misdeeds during the course of interviews with the respondent's officials in Manila, and to his wife's parents and Ms Padua, a family friend. The Tribunal considers these disclosures as no more than an attempt by Mr Sy to place himself in the most favourable situation to obtain a spouse visa, rather than a genuine expression of contrition and remorse which flowed from his past misdeeds. In arriving at this conclusion the Tribunal notes that in his personal testimony, Mr Sy went some way towards retracting his admission to immigration officials in the Philippines that his application for a protection visa was indeed a false one.
EXERCISING THE DISCRETION
PolicyHaving not been satisfied that Mr Sy passes the character test the Tribunal must now determine whether it should still exercise its discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Mr Sy. The Policy Direction refers to a number of factors to which decision makers should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations. The Policy Direction notes that:
Decision makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the important placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
(paragraph 2.2)
The three primary considerations to which the Tribunal must have regard are:
the protection of the Australia community, and members of the community;
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
(paragraph 2.3)
In the present case only the first two of these primary considerations require attention. There are no children involved in the present proceedings. In regard to the first, the protection of the Australian community, the Policy Direction notes the following:
2.4The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
(paragraphs 2.4-2.5)
Among the examples given by the Policy Direction of offences which are considered by the Government to be very serious are:
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.
(paragraph 2.6(c))
Other Considerations
Paragraph 2.17 of the Policy Direction refers to a number of other matters which, although not primary considerations, may be relevant to the exercise of the discretion under the Act. The Policy Direction states, in part, that:
2.17 It is the Government's view that where relevant, it is appropriate these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
(Policy Direction 2.17)
With regard to the exercise of the Tribunal's discretion, the respondent made the following submissions. First, it was submitted by Ms Connor that Mr Sy's offences were serious ones; that Mr Sy had a propensity for dishonesty that the Australian community needed to be protected from and also that a refusal of a protection visa for the respondent would have a significant effect in deterring other from committing similar offences. Second, Ms Connor asked the Tribunal to find that the Australian community expected that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled. The third submission by the respondent was that the hardship which Ms Sarenas-Sy would face, should Mr Sy be refused entry back into Australia, was one contemplated by her at the outset of their relationship and that it would be possible for the couple to live together in the Philippines. Ms Connor also contended that any consideration given by the Tribunal to the issue of hardship would be outweighed by the public interest considerations outlined above.
Ms Sy did not address the Direction specifically in her submission. It is clear, however, from both her personal testimony and her written submission that she conceded that Mr Sy's offences were indeed serious. Ms Sarenas-Sy contended that they were, however, understandable given the difficulties in which Mr Sy found himself. It was Ms Sy's contention before the Tribunal that Mr Sy would not reoffend. Ms Sy also contended that there would be a severe hardship caused to both her, her family and her employer should she have to return to the Philippines. In her personal testimony Ms Sy told the Tribunal that the disruption would in fact be so great as to prevent her from joining her husband in the Philippines altogether. Ms Sy said that although she got on with her husband's family, the majority of her family now lived in Australia and her contacts in the Philippines were few.
CONCLUSIONWhen exercising its discretion under the Act the Tribunal is cognisant of the profound impact its decision will have on people's lives. The Tribunal has some sympathy for the situation in which the review applicant, Ms Sarenas-Sy finds herself. The Tribunal was impressed by Ms Sarenas-Sy as both an honest and forthright witness and advocate on her husband's behalf. The Tribunal has no doubt that Ms Sarenas-Sy entered into her relationship with Mr Sy in good faith and with the hope that the marriage would succeed in the face of My Sy's immigration malpractice.
As noted earlier, however, the Policy Direction requires decision-makers to conduct a balancing process when exercising the discretion under s501(1) of the Act. The Tribunal concurs with the respondent's contention that Mr Sy's immigration misconduct is very serious within the terms of the Policy Direction. As D.P. McMahon noted in the case of Esguerra v MIMA [2000] AATA 148:
In considering the protection of the Australian community, I am to consider the seriousness and nature of the [visa applicant's] conduct. There are examples given in the Ministerial direction as to the types of offences which are considered by the Government to be serious. These include (para 2.6(c)) "Presenting false or forged documents of making a false or misleading statement in connection with entry or stay in Australia". What [the visa applicant] did must be regarded as serious. The nature of his conduct imperils the Australian community in that it attacks the integrity of the immigration system. The harm to the community is recognised in the heavy penal sanctions which [the visa applicant] may attract if criminal charges are brought against him and if he is convicted. Even in the absence of convictions, however, the Australian community requires protection against conduct which may lead to convictions where that conduct is of a serious nature and has grave social implications in the migration system.
(para 20)
The Tribunal concedes that it is unlikely that such conduct would be repeated by Mr Sy. The Tribunal is of the view, however, that this is simply because Mr Sy will have achieved his initial objective of gaining residency in Australia. Mr Sy's offences are of a kind which deserve condemnation, even if he has not been the subject of criminal prosecution.
The Tribunal is also of the view that this is a matter where very significant weight should be attached to the issue of general deterrence. As the Tribunal has said repeatedly in a number of recent cases there must be an end to false claims being made by non-citizens for protection visas in order to allow them to stay in Australia for economic and allied reasons. This Tribunal is of the view that the Australian community has every reason to send a very strong deterrent message to non-citizens contemplating the manipulation of the protection visa system, a system designed to assist the many people who arrive in Australia with legitimate claims to refugee status, for their own benefit.
The Australian community has an expectation that non-citizens obey Australian laws both when they attempt to enter this country and while they are living in Australia. The Tribunal is of the view that Mr Sy has failed the community's expectation in this regard. Mr Sy's stay in Australia was enabled by a fraud and perpetuated by other illegal means. The Tribunal has expressed the view on a number of occasions that there is a legitimate expectation on the part of the community that Mr Sy should not be rewarded for his conduct.
The Tribunal acknowledges the hardship that will be caused to Ms Sarenas-Sy and her family, who are all Australian citizens. The Tribunal notes Ms Sarenas-Sy knew that Mr Sy's immigration status was problematic. The Tribunal can only conclude that Ms Sarenas-Sy knew there was a strong possibility that Mr Sy would not be allowed to remain in Australia. The hardship Ms Sarenas-Sy may now experience was one reasonably contemplated by her from almost the outset of her relationship with Mr Sy. Ms Sarenas-Sy also has the option of joining her husband in the Philippines where Mr Sy is presently employed. There are no children who may be considered adversely affected by such a move on the review applicant's part. The Tribunal is thus not of the view that Ms Sarenas-Sy's hardship is sufficient to outweigh the primacy that must be given to the considerations mentioned above. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 23 and 24 August
Date of Final Submissions 27 September 2000
Date of Decision 9 November 2000
Representative for the Applicant Ms Sarenas-Sy
Solicitor for the Respondent Ms Connor
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