Schroeder and Minister for Immigration and Multicultural Affairs
[2001] AATA 351
•1 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 351
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1514
GENERAL ADMINISTRATIVE DIVISION )
Re MANFRED SCHROEDER
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J. Block
Date1 May 2001
PlaceSydney
Decision The decision under review is affirmed.
.........(signed J. Block)..........
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP - spouse visa – refusal on character grounds – whether visa applicant fails to meet the character test – overstaying of visa – work without permission – protection visa – false and misleading statements to migration authorities – protection of the Australian community – expectations of the Australian community – hardship to applicant.
Administrative Appeals Tribunal Act 1975 – s 37
Migration Act 1958 – ss 18, 198, 199, 205, 234, 235, 417, 499, 501
Migration Regulations – Schedule 5, regulation 5002(1)
Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023
Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956
Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967
REASONS FOR DECISION
1 May 2001 Deputy President J. Block
(a) The decision under review in this matter is the refusal dated 31 August 2000 by a delegate of the Respondent of an application for a Class UF Subclass 309 Spouse (Provisional) and a class BC Subclass 100 Spouse (Migrant) Visa by Josefina Schroeder, formerly Josefina Sarmiento, ("the Visa Applicant") and in respect of which the Applicant, her husband, was the sponsor.
(b) Mr Ray Turner, of Tzovaras Legal, appeared for the Applicant, and Mr Nathan Cureton, of Blake Dawson Waldron solicitors, appeared for the Respondent.
(c) The Tribunal had before it the T Documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with Exhibit A1, being an outline of evidence of the Applicant.
(d) Although the T Documents refer to the Department of Immigration and Multicultural Affairs ("DIMA") as the Respondent, the relevant decision was made by a delegate of the Minister, and it is thus he who is cited as the Respondent in this matter.I commence (as I have done in similar matters in the past) by way of background and in order to set the scene, by setting out a number of relevant documents.
(a) The Respondent's Statement of Facts and Contentions, dated 18 April 2001, reads as follows:"FACTS
On 2 May 1938 the applicant was born in Berlin, Germany (Tp 193).
On 18 November 1946 the visa applicant was born in the Philippines (Tp 45).
On 23 January 2001 the visa applicant was issued with a visitor visa for Australia (Tp 44).
On 28 February 1996, the visa applicant arrived in Australia on a visitor visa valid for 3 months from the date of arrival (Tp 79).
On 4 March 1996, the visa applicant lodged an application for a protection visa (Tp 33) with Department of Immigration and Multicultural Affairs ("DIMA").
On 27 August 1996, the delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa (Tp 63).
On 26 September 1996, the visa applicant lodged an application for review to the Refugee Review Tribunal ("RRT") of the delegate's decision to refuse the protection visa (Tp 84).
On 27 October 1997, the RRT affirmed the decision of the delegate to refuse the grant of a protection visa (Tp 84).
On 28 November 1997, the visa applicant sought Ministerial intervention under Section 417 of the Migration Act 1958 ("the Act") (Tp 91).
Between 19 March 1998 and 9 September 1998, the visa applicant held valid bridging visas. However, the visa applicant only had permission to work from 19 March 1998 to 7 July 1998 (Tp 131; 139).
On 8 June 1998 the visa applicant met the applicant and they commenced living together 2 months later (Tp 212).
On 16 July 1998 the applicant was notified by DIMA that her request for consideration under s417 was denied (Tp 161). In the same letter, the applicant was asked to contact DIMA to discuss her status.
On 23 September 1998 DIMA issued the visa applicant's employer with a notice under section 18 Migration Act 1958, ordering her to disclose the whereabouts of the visa applicant (Tp 157).
On 20 June 1999, the visa applicant married the applicant (Tp 210).
On 8 June 1999 the visa applicant applied for and was granted a bridging visa with the conditions that she did not work and would leave Australia by 10 July 1999 (Tpp 148; 150).
On 10 July 1999, the visa applicant departed Australia.
On 10 July 1999, the visa applicant lodged an application for a spouse visa based on her marriage to the applicant (Tp 166).
On 21 July 1999, the visa applicant was interviewed by DIMA (Tp336).
On 16 November 1999, the visa applicant was again interviewed by DIMA (Tp336).
On 13 March 2000, the visa applicant's children were interviewed by DIMA (Tp335).
On 27 June 2000, the visa applicant and her children were again interviewed by DIMA (Tp334).
On 31 August 2000, the applicant was interviewed by telephone by DIMA (Tp332).
On 31 August 2000, the Delegate of the Minister refused the application for a spouse visa (Tp 4).
On 27 September 2000, the applicant lodged an application for review with the Administrative Appeals Tribunal (Tp 2).CONTENTIONS
The factors to be considered in the exercise of the power in s.501 of the Act are set out in the Direction – visa Refusal and Cancellation under section 501 – No. 17 made by the Minister pursuant to s.499 of the Act ("the policy"). The respondent contends that the Tribunal is bound to apply the policy (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
The exercise of the discretion in s.501 involves a two-stage process:
(a) a consideration by the decision maker of whether or not the visa applicant passes the Character Test; and
(b) if the applicant does not pass the Character Test, a consideration by the decision maker of whether the discretion in s501 should nevertheless be exercised, taking into account primary and other considerations.PART (a) – APPLICATION OF THE CHARACTER TEST
Character of the visa applicant
The respondent contends that the visa applicant does not pass the character test based on the following general conduct:
lodging a Protection visa application on 4 March 1996 without any basis for doing so;
lodging an application to the Refugee Review Tribunal ("the RRT") for review of the Department's decision to refuse her a Protection visa and maintaining the baseless refugee claims that were before DIMA;
maintaining the baseless claims for refugee status to the Minister for Immigration in a letter when applying for Ministerial intervention under s417 of the Act; and
Remaining unlawfully in Australia between September 1998 and July 1999.
Working in Australia when she did not have permission to do so.
The policy indicates at paragraph 1.9 that the Tribunal should consider certain matters (where they are relevant to the facts of a particular case), and, where they are relevant, would, in the absence of countervailing factors, constitute a failure to pass the character test. The following matters listed in paragraph 1.9 are relevant in this case:
Paragraph 1.9(b) of the policy states "whether the non citizen has, in connection with any application for the grant of a visa...provided a bogus document or made a false or misleading statement".
Paragraph 1.9(c) of the policy state "whether the non-citizen has ever made a false or misleading declaration on an approved form...about the non-citizens character or conduct or both".
The respondent contends that the visa applicant has engaged in the conduct which would fall within paragraphs 1.9(b) and (c), and as a result she does not pass the character test. There is no evidence of countervailing factors (such as recent good conduct). Further, the respondent contends that insufficient time has elapsed to warrant to finding that she now passes the character test.
Taking the visa applicant's conduct as a whole, the respondent contends that she does not pass the character test.PART (b) – EXERCISING THE DISCRETION
If the visa applicant does not pass the Character Test, the Tribunal nevertheless has a discretion within s501 of the Act. In exercising that discretion, the Tribunal must have regard to a number of "primary" and "other" considerations as outlined in the policy.PRIMARY CONSIDERATIONS
Protection of the Australian Community
The respondent contends that, taking into account the seriousness of the visa applicant's conduct, the risk that she will re-offend and the need deter others from similar conduct, the protection of the Australian community weighs heavily against the discretion being exercised in favour of the visa applicant.
Seriousness of the conduct
Paragraph 2.6(c) states that presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia is considered by the government to be very serious. The seriousness of the visa applicant's conduct is considered under the heading of the "Protection of the Australian community" and is a primary consideration. Having regard to the policy, the respondent contends that the visa applicant's conduct in circumventing Australia's Immigration laws is very serious.
The Tribunal in the past has treated immigration malpractice as very serious (see for example Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148).
The risk of recidivism
The visa applicant has shown a disregard for Australian laws in order to obtain advantages for herself. The respondent contends that this conduct over a number of years would indicate that there is a real risk the visa applicant will not respect the law if she is allowed to enter Australia.
General deterrence
The refusal of the visa to the visa applicant will send a clear message to others that conduct similar to the visa applicant's is not acceptable to the Australian community and non-citizens can expect to be refused entry if they engage in similar conduct (Paragraph 2.11 of the policy). In this regard see Msumba and DIMA (McMahon DP, 8 February 2000, unreported at paragraph 39).
Expectations of the Australian community
The visa applicant has engaged in activity which the respondent contends to be of a nature such that the Australian community would expect that the visa applicant not be allowed to enter and remain in Australia.OTHER CONSIDERATIONS
Interests of the applicant.
Whilst there will be hardship to the applicant, the respondent contends that the primary considerations of the need to protect the Australian community, in particular, the integrity of the immigration system, outweigh the secondary considerations of hardship to the applicant.CONCLUSION.
The respondent contends that the visa applicant does not pass the character test as a result of her past general conduct. The primary considerations of the protection and expectations of the Australian Community outweigh the hardship to the applicant and the applicant's child such that the discretion in s501, despite the finding that she does not pass the character test, should not be exercised in her favour."
(b) By way of balance, I include the Applicant's Statement of Facts and Contentions, dated 15 April 2001, reading as follows:
"FACTS
1. Ms Josephin Sarmiento, the visa applicant, applied for and was granted a visitor visa which was granted for a period of 3 months. She arrived in Australia on 28 February 1996.
2. On 8 March 1996 the visa applicant applied for a Protection Visa (PV). This application was rejected on 27 October 1997.
3. On 6 November 1997 the visa applicant sought Ministerial intervention pursuant to the Migration Act 1958 s417.
4. On 16 July 1998 the Minister declined to exercise his powers.
5. The visa applicant married Mr Schroeder (the applicant) on 12 June 1999.
6. The visa applicant departed Australia on 10 July 1999.
7. On 10 July 1999 the visa applicant applied to migrate to Australia as the spouse of the applicant.
CONTENTIONS
8. At all stages of her applications to enter and remain in Australia the visa applicant was advised by others. She relied upon that advice.
9. There is no evidence before the Tribunal which indicates that the visa applicant knowingly made false statements.
10. The applicant was aware that his wife's application included her children but he was confused as to the nature and extent of his sponsorship.
11. The term recidivism refers to the likelihood of a person re-offending. If the visa applicant is granted her visa there will be no need for her to further re-offend as she will, by the time any favourable decision by the Tribunal is implemented, be entitled to be granted Australian permanent residence. The chance of re-offending is, therefore, nil.
12. There is no evidence of a general deterrent effect of the refusal of the visa applicant's application.
13. Mr Schroeder, the sponsor, is 62 years old and has been separated from his wife, except for one brief visit, since July 1999. This separation is causing him great distress.
14. If the visa applicant made a "monitored departure" as set out in the decision it would appear that she was removed under the Act s198. In cases where people are removed under this provision and a restriction on re-entry applies, that restriction is 12 months.
15. The issue in this case should not be whether the visa applicant should ever be able to re-apply but after what period of time should a person, in the position of the visa applicant, be able to re-apply. In my submission, with regard to the provisions of Schedule 5, clause 5002, that period should be 12 months.
16. a. The visa applicant does not pose a risk to the Australian community.
b. The Australian community does not have an expectation that people in the situation of Mr Schroeder and his wife should be kept apart for a long period.
c. Mr Schroeder will suffer significant hardship and disadvantage if his wife is not granted a visa.
17. The balance of relevant considerations is, therefore, in favour of the grant of a visa to Mrs Schroeder."
(c) Exhibit A1 reads as follows:
"1. I am the husband of the applicant in these proceedings, Ms Josefina Sarmiento.
2. My wife left Australia two years ago after we were married.
3. During this time I have travelled to the Philippines twice to be with her. I am not able to spend more time with her as I have to work in Australia.
4. Each time I have been in the Philippines I have gone to the Australian Embassy to speak to Mr Heath who is the Senior Migration Officer. He has told me that my wife cannot come back to Australia.
5. I know that my wife broke the law in Australia and I am very sorry for that. I love my wife very much and miss her.
6. My wife has been outside Australia for two years. I believe that this is long enough for her to pay the price for breaking the law here.
7. I believe that if my wife comes back to Australia she will make a good wife and look after me well.
8. If my wife does not come back to Australia I will be denied the companionship and support that she can give me.
9. I cannot afford to live in the Philippines as I could not get a job there because I am old.
10. When I filled out the sponsorship form there was a misunderstanding between my wife and I. I did not think that she was including her children in her application but that we would try to have them join us later. I am sure that she did not try to deceive me."
I next, and again as a matter of convenience, gather a number of extracts from the T Documents.
(a) The Respondent's decision, dated 31 August 2000, is set out in T2; Part C of T2, under the heading "Assessment", contains the Respondent's assessment of the "Background" in the following terms (pp. 10-12):"PART C: ASSESSMENT
BACKGROUND
1. The applicant is sponsored by Australian citizen Manfred Schroder. The applicant was previously married in the Philippines but her Filipino husband passed away in 1996. She has children living in the Philippines whom she included in her application migrate. The applicant and sponsor first met in June 1998, and commenced living together two months later. They have provided evidence and claims that they resided together in Australia, until the applicant left Australia in July 1999. There are no children of the relationship.
2. The applicant first travelled to Australia on a three month visitor visa on 28/2/96 but did not return until July 1999.
3. She then lodged an application for a protection visa in Australia on 8/3/96 (prior to meeting her current sponsor). The claims she made in the application are at folios 3-5 of file N96/001197. This application was refused and she applied for review with the Refugee Review Tribunal. When the review was unsuccessful, she sought Ministerial intervention under the Migration Act 1958. The Minister decided against intervention in this case, on 16/7/98. She then again sought Ministerial intervention under S.417 of the Act.
4. The applicant applied for and was granted a number of Bridging E Visas as a result of her applications and letters to the Minister through which she obtained permission to work in Australia.5. On her return to the Philippines the applicant lodged the current application for migration, subject of this assessment (folio 76ff). As part of the assessment of this application, the applicant was interviewed on 21/7/99 in person (refer to IRIS casenote #1 of interview) and again on 16/11/99 and 27/6/2000 by Australian officers (refer IRIS casenotes for relevant dates).
6. At the first interview, the applicant stated she had applied for the PV because of her husband's death in May 1996, however records indicate the PV was lodged before his death. She said she lodged the application through migration agent Belen Oag. The applicant claimed she did not remember what was invluded in the PV application because the agent did it for her (refer IRIS casenote # 1). She also stated that she had sought Bridging Visas in ordewr to be able to work in Australia.
7. At the second interview, with an Australian officer (IRIS casenote of 16/11/99), the applicant was able to answer questions clearly but gave vague and evasive answers when asked about her PV application and reviews. She said her PV claims were "something to do" with when she was a beautician and there were drug abusers in her salon talking about money.
8. At the third, and more detailed interview (refer to IRIS casenote # 15 for details), the applicant again gave inconsistent answers and reasons for applying for the PV. She was asked for the specific reasons why she applied, and gave an account. However the account she gave did not concur with the claims in the actual PV application (folios 2-5 of file N96/001197). The actual claims were put to her for comment, and she was asked which version was true, that which she had stated at interview, that stated in her PV application, or neither. She then asked that the officer speak with her sister, stating that the sister wrote the claims for the PV application for her and that they were "true", but that she "forgets the details" and could not remember what her sister had written in the form (this conflicts with her earlier claim that her agent completed the details). She further stated that she had continued through review to the ART because she had no money and wanted to be able to work to support her children and because her husband had died. She was also asked why, even after the Ministerial intervention requests had been determined, she continued to remain in Australia. She said she stayed on because she wanted to continue to work to be able to send money back to her family, and to be with her "boyfriend" (the sponsor) whom she "worked for" doing his housework.
9. Two of the applicant's children were also interviewd on 13/3/2000 (regarding their dependency-IRIS casenote #10) and on 27/6/2000 (IRIS casenote #15 -latter half). In their first interview they stated that their mother originally went to Australia on the visitor visa because "somebody had to work" and their father was sick, and that while she worked in Australia she sent money back to support them. At their second interview, the children (aged 17 and 19 yrs old) repeated the comments that their mother went to Australia in order to work. They were asked if there was any other reason why their mother went to Australia (eg. because of threats or harassment) to which they said "no". They also had no knowledge of any threats or drug problem in the vicinity of their house.
10. These factors in the preceding paragraphs (and the other details in the files and casenotes) indicate that the claims for protection made by the applicant were fabricated and that the purpose in lodging the application was for reasons other than a genuine need to seek Australia's protection. The circumstances also indicate to me that the application for PV and associated review and Ministerial intevention requests, as well as the original visitor visa application by the applicant, were all made primarily for the purpose of the applicant being able to work in Australia.
11. Apart from her responses at interview, the applicant was also given the opportunity to respond in writing as to why she should not be determined to not be of good character. This invitation is at folio 100. She replied (folio 126) wherein she again puts forward another variation of the PV claims made in her earlier PV application. Her claims in this response are again at odds with her statements at her interviews. She also attached references from members of the community vouching for her character (folio 103-126).
12. The sponsor was interviewed by telephone on 31/8/2000. In the interview, it became apparent that the applicant has not told the sponsor about her PV claims nor application. He understands that she came to Australia because her husband died [however her husband actually died after she went to Australia] and because she needed to work to support her children. The sponsor was also asked about folio 101, wherein he states that the applicant deceived him by attempting to include her children in the application without his knowledge."
(b) A few days after her arrival in Australia the Visa Applicant applied for a Protection Visa; in answer to the question "Why did you leave that country?" she answered (at T5 p.52):
"I've been in the civilian life working in government as civilian defense in the Phil. My front job was a beautician or hairdresser. I meet all different types of people that's why most of the people that I'm dealing with doesn't have any idea that I'm a civilian worker. I was governed to negotiate to civilian people in dealing w/ outside activities in civilian life. Being an active member I was allowed to report all the illegal activities on what is happening in our community. I was given all the opportunity to report all the things happened and report to my higher officer. One day I discovered two of my co-civilian workers were involved in dealing with illegal gambling 'coz I've seen them & I've heard them dealing with those people with monkey business. I was surprised then 'coz supposed to be they were the one whose gonna help people on how to stop these. Due to this, 'coz I was given an authorization to sue all illegal activities, I went to our office to report to my superior but before I knocked the door I've heard my higher superior talking w/ these two people & I was shocked again on what I've discovered that our higher superior was the one who is giving an authorization to do illegal activities. I was shocked and before I discovered they already caught me outside the door & heard everything. Due to this I fear for the safety of my life bec. I know them that they will do everything."
In answer to the question "What do you fear may happen to you if you go back to that country?" she answered (at T5 p.53):
"I fear for my safety. These people are the kind of people who will do everything even if its impossible. They are capable of doing the worst without being prosecuted. These people whom I'm expecting to make good examples in our society are the people whom you cannot depend in time of needs. These people should be the lawmakers of our country. They should provide all good informations, good judgements and good reasoning. But I was wrong completely wrong. Instead they were the lawbreakers in our country. In the Phil. money talks. As much as possible I do not want to go back home."
In answer to the question "Who do you think may harm/mistreat you if you go back?" she answered (at T5 p.54):
"The civilian defense and my higher superior whom I'm working with."
In answer to the question "Why do you think they will harm/mistreat you if you go back?" she answered (at T5 p.54):
"My higher superior threat my life, they rang me and utterred mischievous things, silly things and threaten my life. I know his temperament and attitude and I am very scared at him. I am also scared at the others who are also contesting with me w/n I'm still working with them. I don't think I will survive if I stayed in our place."
And in answer to the question "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" she answered (at T5 p.55):
"There are little things that they could do. The problem with the government there is that they have no money to provide protection for those who are legally entitled to it. I don't think they will be interested in protecting me because I am just a civilian defense."
(c) The Visa Applicant's application for a Protection Visa was refused by DIMA. DIMA's reasons were contained in clause 4.3 (at T8 p.70) as follows:
"4.3 Reasons
4.3.1 The applicant's claims are not related to any of the five Convention reasons. Regardless of the credibility of her claims (which will be discussed below), any harm she may face on return to the Philippines would not be for reasons of her race, religion, nationality, membership of a particular social group or political opinion, but for having discovered illegal activities and therefore being perceived as a potential threat to the people involved in those activities.
4.3.2 Apart from the fact that her claims are not Convention related, I did not find the applicant's claims to be credible. At the interview she was asked when she overheard the conversation between her superior and two co-workers. She first said she could not recollect because she did not really try to commit the date to her memory. She then said it could have been in March 1996. She then corrected herself and said it may have been January 1996. Towards the end of the interview she said that she now clearly remembered the date of the incident. It happened on 29 January 1996. When asked whether she was sure of this, she replied in the affirmative. I put to her that her visitor visa to come to Australia was granted on 23 January 1996, six days before the alleged incident took place. She had no satisfactory explanation for this fact.
4.3.3 Furthermore, it was put to the applicant that she claimed in her written application that she had received death threats after she had discovered that her superior and co-workers were involved in illegal activities. I quote: " My higher superior threat (sic) my life, they rang me and uttered mischievous things, silly things and threaten (sic) my life. " (1 at folio 4 -back). Yet, at the interview she was adamant that they acted as if nothing had happened and did not threaten or harm her in any way. Again, she had no satisfactory explanation for this discrepancy between her written and oral statements.
4.3.4 Throughout the interview the applicant was evasive and vague about the incidents that allegedly took place in the Philippines. Given the substantial nature of the deficiencies in her evidence, I find that the applicant has fabricated her claims in order to enhance her chances of a successful Protection Visa application."
(d) The Visa Applicant then appealed to the Refugee Review Tribunal ("RRT"); her application again failed; the RRT's Findings and Reasons are contained at T11 p.88-89 as follows:
"FINDINGS AND REASONS
The Applicant maintained the core of her claim but was vague, confused, inconsistent and unconvincing about much of her case. She excused herself for loss of memory variously on grounds of nervousness at her primary interview, fear after being found out in the incident, stress with sickness of her husband and his death in May 1996 and anaesthetic during childbirth (her youngest child is 15 years old). The Tribunal gave her ample opportunity to clarify and explain but this did little to help her. The Tribunal did not find her a very satisfactory or credible witness.
She gave accounts of her actions and movements after the incident which, in the Tribunal's view, tend to weaken her claim that she is at risk from the three superiors/co-workers: notwithstanding the reputed threats against her life, she continued to work as hairdresser for two months after the incident and slept most nights at her own home (after dark and only until 4am). She was still working as hairdresser when she got her visa on 23 January 1996; it is notable that this date is before the date of 29 January 1996, which she firmly identified at primary interview (but could not remember before the Tribunal) as the date of the incident which first put her in jeopardy. These dates undermine the Applicant's claim that it was fear after the incident which caused her to escape to Australia; they are fully consistent with the explanation, also open on the Applicant's evidence, that her reason for coming to Australia was economic and related to the sickness of her husband and the financial welfare of her family.
Threats against the Applicant, on her own account, were conveyed only once, only by her highest superior, and only over the phone; none of the three that she overheard came to her, they just gave her a bad look. She was not killed during the two months that she remained accessible because the would-be killers did not like people to know that they carried guns. The Tribunal finds both these explanations and the evidence that they relate to implausible and cannot give weight to them. The Tribunal is satisfied that there is not a real chance that the Applicant would suffer persecution were she to return to the Philippines and that her fear of persecution is not well-founded.
Even if the Tribunal were to take the Applicant's claims at face value, and accept that there is a real chance that she would suffer serious harm were she to return, the evidence does not support that the harm would be directed at her for a Convention reason: her own answers negative that she has any political profile, nor can an acceptable case be made on the evidence that she would have a political opinion imputed to her - she would not be harmed for any political reason but because persons acting illegally would protect themselves by taking purely criminal action against her."
(e) T12 p.90 is a document dated 26 November 1997, which indicates that in the view of the Respondent, and following the RRT's decision, the Visa Applicant's case did not merit review under Ministerial guidelines, and warranting the exercise of the Respondent's discretion under section 417 of the Migration Act 1958 ("the Act"); however, on 28 November 1997, Belen Oag sought Ministerial intervention under section 417 of the Act on behalf of the Visa Applicant. The fourth, fifth and sixth paragraphs of that letter (at T13 p.91) read:
"Ms Sarmiento claims that she is in fear for her life from her superior and two co-workers in the Civilian Defence in the Philippines. She overheard them to be involved in illegal gambling and drug trafficking. They knew she overheard them and her superior threatened her life.
Ms Sarmiento claims that she did not tell the police or the newspapers about what she had discovered about her superior and co-workers because her life would have been all the more endangered because of their positions in the government.
Ms Sarmiento's husband died on 8 May 1996 for which she had been unable to go home because of her fear for her life. Her three children are being looked after by her sister-in-law. If she returns to the Philippines, she feels that she will be killed because her former superior and co-workers would think that she might go to the police or the newspapers and would like to shut her up. Then her three children will be without a mother."
The Tribunal here notes that despite references in the T Documents to two section 417 applications, there was in fact only one; the memorandum dated 26 November 1997 referred to earlier in these Reasons arose apparently in the ordinary course of events. The section 417 application made on behalf of the Visa Applicant was refused, as appears from T19 p.161.
(f) The Chronology contained in the Respondent's Statement of Facts and Contentions indicates that in September 1998 DIMA issued a notice under section 18 of the Act, ordering the Visa Applicant's employer to disclose the whereabouts of the Visa Applicant; it also discloses the fact that the Visa Applicant departed Australia in July 1999; that departure was apparently a "monitored" departure (sometimes referred to in the T Documents as a controlled departure).
(g) The Visa Applicant and the Applicant then made an application for a spouse visa; T21 p.187 indicates that the Visa Applicant's children Ramses Sarmiento (born 29 October 1975), Raquel Sarmiento (born 11 October 1980) and Richard Sarmiento (born 8 December 1982) were included in the application. Subsequently, however, the Applicant sought to withdraw his sponsorship of the Visa Applicant's children; his statutory declaration, dated 22 May 2000 (T28 p.323), reads as follows:
"I, Manfred Rudolph Schroeder, do solemnly and sincerely declare,
re: file number F99112587/309,
that I wish to withdraw sponsorship for migration to Australia for the following persons:
1. Ramses Sarmiento DOB 29/10/75
2. Raquel Sarmiento DOB 11/10/80
3. Richard Sarmiento DOB 08/12//82
I was deceived by Josefina Sarmiento (wife) into believing that I was only sponsoring my wife, not her entire family. This has also been reported to immigration officers at Rockdale, NSW."
(h) T24 p.285 is the first page of a letter by the Applicant to the Australian Embassy in the Philippines; the second paragraph of that letter reads as follows:
"I tried calling your office from my house (Australia) many times but everytime I get connected to the number, all I get is the recorded message. I also tried leaving a message but I don't get a return call. I then visited my local Member for the Parliament and ask if he can help me get in touch with your office. He made a phone call to your office and apparently was told that because my wife's application included her three kids from previous marriage, it will take around one year and a half to process the application. I was not aware of this, if I was, I could have just sponsored my wife first. I am happy to have my wife come first and the kids to follow if that is the case."
T25 p.289-290 is part of the record of an interview of the Visa Applicant in July 1999; two extracts will suffice:
At p.289 the following note appears:"PV file requested from ONPRO NSW. – Met today with SP and PA. Asked PA about her PV appn. She was very vague about the circumstances that led to her lodging an application for a PV. She provided no details about what stage she went to in the PV process. She said it was difficult for her to remember but it was something to do with when she was a beautician and there were drugs abusers in her salon talking about money. Very vague and evasive. The PA claimed not to understand english at various time and AO Nem was used to interpret. The PA understood my questions very well at other times during the interview. Processing will be delayed until we receive the file from onshore. Advised this to SP and PA. Possible character issue."
And at p.290 the following note appears:
"** I suspect PA has confused a bridging visa for a PV or Refugee visa appl. When asked if she filled out any forms she stated Agent did it all for her and does not remember much. She never attended any interview or received any letters.
Her VV in 1996 allowed her a 3 month stay not a 6 month stay."
(j) T27 p.292 is a letter from the Respondent's delegate, Mr Geoff Heath, addressed to the Visa Applicant, dated 31 November 2000; part of it reads as follows:
"Records show that in your previous dealings with this department, you have:
Applied for a protection visa in Australia on the basis of false and misleading claims, and also provided the same information to the Refugee Review Tribunal and in two requests to the Minister for Immigration and Multicultural Affairs when seeking intervention.
Provided false and misleading claims at your interviews with the department at the Australian Embassy, Manila, in connection with your current application, relating to the reasons why you applied for a protection visa and associated reviews;
Overstayed your visas in Australia and became unlawful by failing to depart when your avenues of review had been exhausted.
I believe that these facts are relevant to consideration of your ability to satisfy the good character criterion.
Section 57 of the Migration Act requires that you be given an opportunity to comment on adverse or other information which may lead to a decision to refuse a visa. Therefore, you are invited, if you wish, to provide further information in writing for the consideration of the decision maker. You should provide information about why you acted in the manner stated above and why you believe you should be assessed as passing the character test (see attached) given your actions as stated above."
(k) T28 p.297-298 contain an affidavit of explanation by the Visa Applicant; clauses 1 to 8 on p.297 are set out; they read as follows:
"1. In order to escape the lethal clutches of a notorious drug syndicate, I traveled and came to Australia;
2. Incidentally, sometime the end of 1995, I overheard conversation of a group of men at our rustic place in our barrio about a big drug deal under the protection of some member of the police force;
3. The preceding matter was divulged to a neighbour who I discovered later was a member of said syndicate;
4. From that point on, I have been receiving numerous threats to my life and my family which made me decide to have a temporary sojourn to a place outside the Philippines;
5. So I applied for a tourist visa which was granted;
6. While in Australia, my husband advised me to extend my stay for the threats are become more real and continuing;
7. Said tensed situation hastened the demise of my husband whose wake, burial and interment I did not attend;
8. So as to make me forget the sad episode of my life and to fill in the big vacuum left by my husband relative to the support of my children, I tried to seek employment."
(l) T29 contains notes made at a further interview with Mr Heath; clause 18 (at p.332) reads:
"18. Phoned the ap in AA to clarify some matters. I asked sp re his letter at folio 101. He said that when he sponsored PA he was not aware that she had included her three children in the application. He found this out later on and disagreed with it, hence his letter that he was "deceived" by her re this, but added over the phone that despite this he loves her very much. I also asked the sp if he knew what her immigration status was while she was in AA. He said that when they met, PA told him she "was overstaying" her visa, so he decided to marry her so she could come back to the Philippines and apply legally, which he understood was the right thing to do. I asked if he knew what visas she had applied for in AA, if any. He said he did not know of any. I asked him if he knew why she went to Australia in the first place in early 1996. He said she came because her husband died and she had to work to support her children (I note that her husband died after she came to AA). I asked if she ever mentioned to him anything about being in fear of her life or receiving threats – he said "no". The sp said again he loves PA very mich and could I help him. He said he is a 63 y.o. butcher, still working, and owns his house. I said I am assessing the application and we will be in contact with the applicant.
COMMENT: Appears PA has not divulged anything re the PV application or her claims of threats/harassment to sp, and attempted to include the children without him knowing."
And clause 15 (at p.333-334) reads as follows:
"PA and her two children (Richard and Raquel) attended for IV. IV'd PA by herself (children in waiting area as they are 17 and 19y.o). Tstarted IV in English, but PA had some difficulty, so re-started with Ms Tata Alegro interpreting in Tagalog.
I asked what visas she had applied for while in AA. PA answered, bridging visas, working permits and a protection visa. I asked why she had applied for the protection visa. PA said her reasons were because in 1995, she heard a group of drug addicts talking, they saw her listening and she was then being harassed by them. I asked for more details about when and where – she said this happened in Pampanga where she lives and where she has a beauty parlour at her house. The was at a neighbour's house and heard the drug addicts talking in a room. PA was working for herself as a self-employed hairdresser from her house. I asked PA if she was ever threatened by the drug addicts or any of their colleagues – she said no, she never received anny threats, but was scared because neighbours four houses away were murdered. I asked if the drig addicts she referred to had anything to do with the murder – she said no. Said she was just scared, that why she applied for the protection visa in Australia.
I then asked if she feared for her children and husband who she left behind in Pampanga – why did she leave them behind? She said the drug addicts would not harm her children, because the children did not see or hear the conversation about the drugs. She said the children were living at her sister-in-law's house. I said I felt it unsual that if she was in such fear, she would leave her children behind, when any threat of harm could be directed at them as a was of harming her (PA). PA said they would not hurt her children. She said she was never threatened, only that the drug addicts thought she might go to the police. I asked PA who completed the PV application form (which I had in front of me at the IV). PA said her sister wrote it out because she (PA) does not write English very well. I asked who told the sister what to write. PA said she told her sister what to write in the form.
I asked PA if she had ever worked for the government in the Philippines in any way at all. She said no, she has only worked for herself as a hairdresser at home in Pampanga. I then summarised what was in the PV application form claims, i.e. that she had been working "in the civilian life working in government as civilian defense", and that her "front job" was as a hairdresser. I continued to summarise her claims, pointing out that she claimed she had overheard talk about "illegal gambling", and that her "hogher superviser" was one of the people she overheard talking and he was involved, and he threatened her. I pointed out that this was quite different to what she had just related to me, and asked which was correct, what she had just told me at IV, what was in the PV application, or neither. She said that what was in the PV application was true. She asked a number of times for us to talk to her sister who was waiting outside, as she (PA) was having trouble remembering what was in the form. I pointed out that if her claims were true, she would remember what they were. PA again asked us to talk to her sister. PA said, "please call my sister in who wrote it – I forget the details".
I then asked why she applied to the RRT. "Because that's the procedure". I asked what her erasons were for applying – she said her lawyer advised her to. PA then said she applied because she had no money and she wanted to work and to be able to support her children in the Philippines and because her husband had died. I asked if she feared for her children's safety while they were by themselves? She said no, the drug addicts were her neighbours while her children were living at her sister-in-laws house. The neighbours know the children and wouldn't do anything to hurt them.
I asked PA why she applied twice for s.417 intervention. She looked puzzled and said she had applied 3 times for her working permit so she could work.
I asked why she stayed in Australia even after her reviews were finished and she became unlawful. She said she wanted to stay to be able to work and send money back to her family and to be with her "boyfriend" who she "worked for" doing his cooking and cleaning and washing. I asked if she meant Mr Schroeder (the sponsor), she said yes. I asked if she was his employee at the time. She then said no, but she looked after him and then later he married her.
PA left the IV room and I spoke with PA's two children, Richard (17y.o.) and Raquel (19 y.o.)
I asked them why their mother went to Australia. Raquel only spoke, Richard remained quiet throughout. She said PA went to AA to work there because their father was sick. Any other reason why she went? Raquel said "it's the only reason." I asked if PA ever worked for the government in any way in the Philippines. Raquel said "no", she was a beautician. I asked where they had been living, and Raquel said they had been living at the PA's house in Pampanga, before she went to AA, and continued to live there while she was in AA and up until the present. To confirm that we were talking about the same house, I asked if they have always continued living at their mother's house where she has her beauty parlour – Raquel said yes. I asked if there had ever been any problem with the neighbours there – no – or any problem with drug delares or addicts in the street. Raquel looked surpirised and said "no".
I then called PA back in and gave her a s.501 letter inviting her to respond to the character issues, so I could assess against s.501, as she has provided false ino in her PV application and reviews, had procided false information again at IV on two occasions in connection with current application and overstayed her visa to be able to work.
Await reply and assess against s.501."
The Applicant was the only witness called to give evidence before the Tribunal. In respect of his evidence:
(a) He is nearly 63 years old; he is a butcher by trade and had worked for the same firm for the past 21 years.
(b) He was divorced for some 15 years before he met the Visa Applicant; he has a son and a daughter, born in 1964 and 1970 respectively, by his prior marriage, but does not have any contact with his daughter. His son, with whom he does have a relationship, is an officer in the Royal Australian Air Force.
(c) He met his wife, the Visa Applicant, in somewhat odd circumstances. He approached the Commonwealth Bank of Australia (Canley Vale branch) in June 1998 and was interviewed by a Filipino woman, who asked whether he was married. (He had approached the bank for a loan with which to buy land). He replied that he was not, and that answer led to his introduction to his wife, the Visa Applicant, and his relationship with her, which culminated in his marriage to her in June 1999. When he first met her, the Visa Applicant was working for a hotel in Kings Cross, Sydney, but after a few months she was obliged to give up that job; she moved in with the Applicant in August 1998 and lived with him until she left Australia for the Philippines in July 1999.
(d) The Applicant is, as Mr Turner informed us, hard of hearing, and this may account in part for the fact that some of his answers were rather confused. He said that the spouse visa application was drawn up by a migration agent in accordance with answers given by him and his wife; it was in this manner that it seeks to sponsor the Visa Applicant's 3 children, all over 18, of a prior marriage.
(e) T28 p.323 is a statutory declaration by the Applicant, which purports to withdraw his sponsorship of the Visa Applicant's children. He said that this step was prompted by his son, who assisted in the preparation of the statutory declaration, after DIMA advised his that his case would be assisted if he took this course. (Mr Turner, in his closing submissions, referred in this context to T27 p.292). The Applicant said that he had a good relationship with the 3 children, although he could only have spent very limited time with them. He spent 7 days and 10 days in the Philippines in November 1999 and November 2000 respectively. (The Tribunal notes that there is a clear conflict between clause 10 of Exhibit A1 and the statutory declaration at T28 p.323).
The Applicant's evidence was that he had not ever alleged deception on the part of the Visa Applicant, and notwithstanding his statutory declaration to this effect. On the other hand, he also said that he saw no reason to sponsor the Visa Applicant's grown-up children, who could come to Australia at a later date, after the Visa Applicant had settled down again in Australia, and had found suitable employment. This conflict in the evidence, as to the deception, before the Tribunal was never resolved, although the Tribunal is prepared to accept that his withdrawal of his sponsorship was prompted by a view that to do so might speed the satisfactory resolution of the application.
(f) The Applicant said that he had visited the Philippines before he ever met his wife. He thought it was a poor country; he was pleasantly surprised to find, when he visited his wife, that she was living, as he put it, in a nice house.
(g) The Applicant said that he would not want to live in the Philippines, but that if the Visa Applicant were denied a visa he would be prepared to do so, because of his desire to be reunited with his wife. He indicated that he was very reluctant to leave Australia. He was asked whether he had made inquiries as to work opportunities in the Philippines. He said in reply that he had not, but in any event doubted whether he was young enough to obtain employment.
(h) The Applicant said that he knew when he married her that the Visa Applicant was not legally resident in Australia. He also said that he knew of her refugee claims only at a later stage, when the spouse visa application was refused.
(a) Mr Turner conceded from the outset that the Visa Applicant overstayed her visa for 10 months and was an illegal non-citizen during that period, ie. the period immediately prior to her departure from Australia in July 1999. He conceded also that she worked illegally in Australia for a part of the time when she had no permission to do so (a period of almost 2 years) in breach of section 235 of the Act.
(b) Mr Turner did not concede that the Visa Applicant was in breach of section 234 of the Act. As he put it, a Protection Visa application can fail because the authorities hold the view that her status is not that of a refugee. But the failure of her applications does not mean that she was guilty of false and misleading conduct within section 234 of the Act, the maximum penalty in respect of which is such that it falls within the very serious category.
(c) Mr Turner made it clear from the outset of the hearing that he did not intend to call the Visa Applicant herself. This led to an adjournment to enable Mr Cureton to take instructions more particularly because he had made it clear that he would require the Visa Applicant for cross-examination. The Tribunal had been informed several days earlier that the Visa Applicant would be called, and had arranged for an interpreter to be present at the hearing to assist her.
(d) This is a case where, in the view of the Tribunal, the failure of the Visa Applicant to give evidence at all must give rise to an inference that she did not do so because to do so would not advance her case. There had been adverse findings of credibility against her on various occasions, and in particular by DIMA and the RRT, and by the Respondent's delegate in the course of interviews to which I have referred. For her to refuse to give evidence in circumstances such as these must lead the Tribunal to infer that she was not telling the truth. In his closing address, and with reference to the fact that the Visa Applicant had not been called, Mr Turner said that while this was so, similarly Mr Heath was not called. The Tribunal does not believe that there is substance in such a contention. Evidence by Mr Heath would have been relevant only by way of rebuttal (if applicable) of evidence by the Visa Applicant. Moreover, it is unlikely that she was telling the truth, as born out by a comparison of the findings and documents to which I have referred. To begin with, she claimed that she was an undercover agent of the government, and that her occupation as a hairdresser was merely a front. That inherently improbable story changed over time; it became more lurid but with an entirely different slant in the affidavit of explanation; in interviews she admitted that she had never been employed by the government. And her daughter Raquel confirmed that her mother was simply a beautician. Indeed the most simplistic of analyses indicates that she never was, and knew she never was, a refugee, and that the whole story was made up to allow her to stay in Australia, for economic reasons. Mr Turner contended that the Visa Applicant deserved credit for the fact that her Protection Visa application was made at a point in time while she was lawfully in Australia; my own view is that the fact that it was made so soon after arrival, coupled with the fact that she had left her sick husband behind in the Philippines, indicates rather that it was planned. I also note in this context that if the Visa Applicant's claims as to her refugee status were true, it is unlikely that she would never have said anything about them to the Applicant.
I must find then, that on a balance of probabilities the Visa Applicant was guilty of breaches of both section 234 and 235 of the Act. Having regard to Direction No. 17 – Visa Refusal and Cancellation Under Section 501 ("the Ministerial Direction"), which is binding on me pursuant to section 499 of the Act, I must find that the Visa Applicant does not pass the character test. This is so in particular having regard to the fourth dot point of clause 1.9(a), which reads:"involvement in activities such as…. breaches of immigration law…"
and clause 1.9(b), which reads:
"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"
and the fact that there is no evidence of recent good conduct. I note also that the Visa Applicant's conduct falls within clause 2.6(c) of the Ministerial Direction; this applies not only to the offences under section 234 of the Act, but also section 235, and having regard to the opening words of clause 2.6(c), reading:
"serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more…."
Having found that the Visa Applicant does not meet the character test, I must consider the discretion contained in Part 2 of the Ministerial Direction. In this paragraph 6, references to clauses should be construed as references to numbered clauses in the Ministerial Direction.
(a) Under clause 2.3 the primary considerations are:"(a) The protection of the Australian community, and members of the community;
(b) The expectations of the Australian community; and
(c) In all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children."
It is common cause that clause 2.3(c) is not relevant.
(b) When considering the level of risk to the Australian community, clause 2.5 requires me to consider:
"(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)."
(c) Although the Visa Applicant's breaches of the Act have persisted over a lengthy period, and despite reservations by the Respondent contained in the Respondent's Statement of Facts and Contentions, I doubt whether recidivism is a factor which I need to consider.
(d) As regards deterrence, both parties referred to my decision in Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023. Just as he argued in Re Maatouk, Mr Turner contended that the Respondent is obliged to furnish evidence of actual deterrence, and that indeed time has gone by since Re Maatouk was decided and so that there is an additional period within which evidence could have been accumulated. Mr Cureton, who also appeared in Re Maatouk, contended in effect that evidence of this kind is inherently unlikely. I, in turn, refer to clause 8(d) of my decision in Re Maatouk as follows:
"(d) Mr Turner dealt with the question of general deterrence also at some length. He said that although there have been a considerable number of these "similar fact situation" cases, the Respondent has not produced any evidence as to show that refusals of visas have resulted in any diminution in the number of these cases; he contended also that that it is likely that evidence of this nature could be made available. Mr Cureton in turn noted this aspect had not been raised by the Applicant in his Statement of Facts and Contentions.
The Tribunal has, on reflection, grave doubts as to whether there is or could be concrete evidence as to this aspect. This would require evidence as to visa applications which would not or might not have been made if the applicants were aware at the time of the applications that subsequent refugee applications would not succeed, or evidence of applications which were not made because the applicants became aware of the fact that refugee applications are likely to fail. When one considers the matter with these aspects in mind, one can readily see that Mr Turner's argument cannot be tenable. This aspect can perhaps be expressed with more force in the negative. If visa applicants received visas notwithstanding the fact they had repeatedly contravened the Act, other visa applicants would receive entirely the wrong message, and arguably would be likely to and would be encouraged to embark on conduct of a similar nature. These "similar fact situation" cases do result in considerable expense to Australia. It may be that certain Australian embassies could do more to make applicants aware of the fact that false refugee applications are not likely to succeed."
(e) As regards the expectations of the Australian community, Mr Cureton contended that it would expect that a visa be denied in these circumstances. Mr Turner contended that the Australian community would consider that sufficient time has gone by since the couple were parted, and so that community expectations would favour them being reunited. Mr Turner raised in this context a point which was novel, at least to me, and which appears in Exhibit A1, and that is that the law incorporates in some fashion a "time" aspect and so that, depending on the circumstances, there will invariably be a period of time (which will vary from case to case) analogous to a gaol sentence, which, having been served, entitles the Visa Applicant to return, having in effect served her sentence. I know of no such provision in the Act or the Ministerial Direction. That is not to say that circumstances do not change; an application made at some future time might be able to demonstrate "recent good conduct" or perhaps more serious hardship considerations, but this is not a matter which need concern me at this stage. In clause 9 of my decision in Re Maatouk, I said:
"What then does the Australian public expect? In Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 Deputy President McMahon said, at paragraph 39 (and I agree with his decision in this regard):
It is also the duty of the Tribunal to consider general deterrence so that the likelihood of a visa refusal would prevent or inhibit the commission of like offences by other persons. Mr Msumba has been in this country for almost six years, after arriving on a three-month visa. The series of applications in which he has been concerned, and the series of false statements which he has made on his own admission, point to a pattern of fraudulently exploiting the system. He should not be rewarded for this conduct. The expectations of the Australian community are also said to be a primary consideration. These expectations would include a refusal of a visa application where a non-citizen has breached Australian laws while in Australia."
(f) Mr Turner contended that the Visa Applicant's conduct was at the low end of serious. I do not agree. It was on analysis no different from that in Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956 and in Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967.
(g) As regards the hardship factor referred to in clause 2.17, I must find that there is hardship to the Applicant, but not such that it outweighs the primary considerations. The Applicant made frequent references to his age (nearly 63) as if he were very old. The fact is that he is an active and clearly able butcher who has no wish to retire. Although he has made no relevant inquiries, the fact that there may well be work for an experienced and hardworking butcher in the Philippines would not be surprising.
Mr Turner referred me also to Regulation 5002(1) of Schedule 5 which reads:
"If the applicant is a person who has been removed from Australia under section 198, 199 or 205 of the Act:
(a)the application is made more than 12 months after the removal; or
(b) the Minister is satisfied that, in the particular case:
(i)compelling circumstances that affect the interests of Australia; or
(ii)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 12 months after the removal."
Leaving aside the fact that there is some doubt as to whether the Visa Applicant was removed under any of the sections referred to, I do not believe that there are compassionate or compelling circumstances within Regulation 5002(1)(b)(ii).
This is not a case where the discretion can be exercised and the decision under review must be affirmed.
I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J. Block.
Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 19 April 2001
Date of Decision 1 May 2001
Solicitor for the Applicant Mr Ray Turner (Tzovaras Legal)
Solicitor for the Respondent Mr Nathan Cureton (Blake Dawson Waldron)
0
2
0