Shilling and Minister for Immigration and Multicultural Affairs - [2001] AATA 567

DECISION AND REASONS FOR DECISION [2001] AATA 567

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/243

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MICHAEL ANDREW SHILLING
  Applicant
           And    MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
  Respondent

DECISION

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

Date21 June 2001
PlaceSydney

Decision The decision under review is affirmed.

[Sgd] R N J Purvis Q.C.
Deputy President
CATCHWORDS
Immigration – Philippines – spouse (provisional) visa – migrant visa – character test – direction 17 – false information provided in visa application – purpose of visit to Australia to obtain employment – working without permission – not a witness of truth – possibility that could act contrary to law on future occasion – degree of hardship if visa refused
Migration Act 1958

REASONS FOR DECISION

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

This is an application by Michael Andrew Shilling ("the Sponsor") seeking review by the Tribunal of a decision made by the Minister for Immigration and Multicultural Affairs ("the Respondent") on 18 January 2000. By such decision the Respondent refused to grant Susan Alisbo (the Sponsor's de-facto wife) ("the Applicant") a class UF subclass 309 spouse (provisional) visa and class BC subclass 100 spouse (migrant) visa.
In the reasons for decision the delegate of the Respondent inter alia stated:
"…
16.      I took into account that significant resources were deployed to resolve Ms Alisbo's status in Australia, that she applied for based on fabricated claims. I did not accept that she did not know what she was applying for nor that she did not know that fabricated claims were presented in her application. The Filipino community in Sydney is close-knit and the type of application (PV) and what it is for, is well known amongst that community. In addition, Ms Alisbo stated at interview that she "took the risk" applying for the PV to be able to work and admitted that she did not attend the interview in connection with the application. I found that Ms Alisbo's general conduct demonstrated a blatant disregard for Australian immigration laws.
17.      I found that Ms Alisbo was not truthful in her dealings with the department with respect to her application for a PV and associated review nor in her reasons for applying for her visitor visa. I found that the applicant's course of conduct over more than two years in relation to the department indicated a disregard for the laws of Australia in particular in relation to the department. This period of dishonest conduct, in connection with more than one application, indicated a course of conduct and not an isolated incident. Given her general conduct over this lengthy period and up until quite recently, I question her commitment to obeying the laws of Australia should she be granted a visa.
18.      Having regarded Ms Alisbo's past and present general conduct in Australia and based on the evidence before me I find that Ms Susan Alisbo is not of good character in relation to her past and present general conduct and as such failed to satisfy me that she passed the character test.
…" (T2, p6)

The issues for determination in this matter are as to whether the Applicant satisfies the character test within the meaning of section 501(6)(c)(ii) of the Migration Act 1958 ("the Act") having regard to her past and present general conduct, and if not whether the Tribunal should exercise its discretion under section 501 of the Act to allow the grant of a visa.
the hearing
At the hearing of the application the Applicant was represented by Mr Michael Jones, a solicitor, and the Respondent by Ms Susan Fraser and Mr Mathew Grey of the office of the Australian Government Solicitor.
There was admitted into evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and marked T1 to T65. Written material tendered by the parties was comprised of the following:
Exhibit No  Description               Date
A        Migration media release 40/96
B        Legal Separation in the Philippines Index only
C        Handwritten notes of the Sponsor
Witness statement Geoffrey Heath 25 November 2000
Witness statement Rachel Gibbs 6 November 2000
Witness statement Rachel Gibbs 21 May 2001
Witness statement Emerita Alegro 22 May 2001

The Applicant, the Sponsor, Mr Mossely, Ms Rachel Gibbs and Ms Emerita Alegro gave oral evidence upon which they were cross-examined.
relevant legislation and direction
So far as is relevant to this application, the relevant provisions of the Act and of the Minister's Direction 17 are as follows:
"Section 501(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 persons past and present criminal conduct;
(ii)       the persons past and present general conduct;
          the person is not of good character; or
          …
otherwise the person passes the character test".
Direction No 17 relates to visa refusal and cancellation under section 501 made by the Minister pursuant to the provisions of section 499 of the Act, provides guidance to decision makers in making decisions to either refuse or to cancel a visa. It consists of two parts. The first relates to the application of the character test and non-citizens satisfying a decision-maker that they pass the test. If the test is not passed the decision-maker is to then exercise a discretion as to whether to refuse or to cancel a visa. In doing so primary and other considerations are to be taken into account. Part two of Direction 17 provides directions as to what those considerations are and the relative weight to be given to them.
The relevant directions are as follows:
"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;
…
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 full 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).
…
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) The protection of the Australian community, and 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.
…
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).
2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:
…
(c) serious crimes against the Migration Act 1958, including, but not limited to,…; presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
…
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
(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 dependent 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;
…
(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
…"

the factual situation

The Applicant was born in Bataan in the Philippines on 14 February 1959. She married her husband on 8 February 1977 and of such marriage there are four children born on 19 June 1977, 19 March 1979, 7 March 1980 and 26 December 1986.
The Applicant is by occupation a mid-wife, having graduated in 1976 from the Bataan Community College in the Midwifery course. She is fluent in the Philippine (Tagalog) and English languages. Prior to 1995 she had worked in her profession in health offices and maternity and children's hospitals as a rural health and hospital mid-wife.
On 14 July 1995 the Applicant applied for a subclass 105 skilled migrant visa, her husband being included in the application as a family member, wishing to migrate to Australia. At the time of her making such application her husband was working in Saudi Arabia as an electronics technician. The Applicant had also at one time worked in Saudi Arabia. The 1995 application was refused by the Respondent.
On 31 July 1996, the Applicant again made an application for a tourist visa. In her application she stated: "my husband is still working in Saudi Arabia, our four kids will stay behind" (T14, p68). She also indicated, wrongly, that she had not previously applied to enter Australia. In a letter supporting her application, her brother's local parliamentary member (he being the only member of her family who with his wife lives in Australia), no doubt as a result of information given to the member, stated that the Applicant's visit to Australia was "in order to meet their children [the brothers children] and assist in caring for them during her stay". As will appear later in these reasons, the real purpose of the Applicant's visit to Australia was to obtain employment and earn money to remit to the Philippines.
The Applicant entered Australia on the 24 August 1996. Two days later she signed an application for a protection visa, the same not however being lodged until 13 November 1996. In her protection visa application, prepared with the assistance of a migration agent, the Applicant stated that she was seeking protection in Australia so that she did not have to go back to the Philippines, even though she had left her four children in that country. She further said:
"Question 36
My husband is currently in Saudi Arabia as a contract worker. I have also worked in Saudi Arabia from 1983 to 1985. I had to go back to the Philippines in order to take care of our children. We live in a small town in the province of Bataan, which has the reputation of being one of the last strongholds of the NPA. Everybody in town knows that my husband works in Saudi Arabia and it is often that poorer townmates would approach me to ask for some financial help. As a gesture of goodwill, I occasionally give some money. My husband is aware of this and he even told me that he too receives some letters from people claiming to be NPA members and asking for some contributions for their cause. In July this year, my husband wrote and told me that these same people are now demanding a substantial amount from him. He refused to give in to their demand. Several weeks later, I received a frantic call from my husband. He told me to leave town as the people who were asking money from him have threatened to harm us. Together with all our children we left town. I then left the country leaving our children with a relative.
Question 37
I fear that the people who threatened us might find us and hold us hostage until my husband gives in to their demands.
Question 38
Should my husband refuse to give in, these people would most likely harm us and even kill us in order to extort money from my husband.
Question 39
Many people from the NPA or those claiming to be with them have now resorted to extortion in order to finance their activities. Kidnapping for ransom is now rampant and those targeted are mostly rich businessmen or overseas contract workers.
Question 40
I have reported the matter to the Police but was advised that they could not do anything yet until something more than receiving these threatening letters are done to us." (T21, p95)
In the course of her cross-examination before the Tribunal, the Applicant said that the dates referred to in the above extract from her application "were all made up", this by the migration agent. She further said, "at that time I did not have the opportunity to read documents. It was given to me and I signed it. I not get time to read it before". She confirmed that her husband did not write to her in July 1996.
The application for a protection visa was refused on 1 February 1997.
On the date 8 February 1997 the Applicant sought review by the Refugee Review Tribunal of the decision 1 February 1997. She said that her reason for seeking such review was:
"A political element can be imputed in the Applicant's and her husband's refusal to give in to the demands of the rebel NPA. Her fear for her life is genuine and well-founded and if given the opportunity, will show that she falls within the scope of a "refugee" under the UN convention." (T22, p112)
In her evidence she said that she again had consulted the migration agent and "I signed what I was told to do without reading it". She was here referring to her signature on the application for review.
The Applicant initially requested a hearing before the Refugee Review Tribunal and the 5 June 1997 was appointed for that purpose. She did not attend the Tribunal hearing and according to a case note by a Refugee Review Tribunal officer said, she wanted it postponed so that "she could get some material from the Philippines". The Applicant in her evidence before this Tribunal denied saying the latter. She later withdrew her application for a hearing and did not provide any further material. The Tribunal on 16 June 1997 affirmed the decision not to grant the Applicant a protection visa.
The Applicant caused a request to be made to the Minister for his intervention pursuant to section 417 of the Act. The application for intervention reiterated the material contained in the original application for a protection visa and the Applicant by letter stated that she had been receiving death threat's (T122). During the course of her cross-examination before this Tribunal she denied receiving such threat's and said that her then agent wrote the letter and "some is true and some not". She said she was not aware that an application was to be made to the Minister on 27 January 1998 the Minister decided not to consider exercising his discretion.
The Applicant worked in Australia from February 1997 to June 1999. The visa and visa extensions granted to the Applicant specified that she was not to work.
The Applicant and the Sponsor first met in June 1997 and began living together in October 1997. They remained so until the Applicant left Australia on 10 February 1999. Some time after they commenced their association and nearby to when they started living together, the Applicant told the Sponsor about her "status as a refugee". She says that she and the Sponsor wanted to marry and she wrote to her husband asking for a divorce. This was not forthcoming. She made an application to the Family Court of Australia and lodged an application for dissolution of her marriage but on being questioned by a judicial officer had her application adjourned and has not pursued it. She said that she "did not go back as I was scared I might be arrested". The Applicant has not been able to obtain a divorce or annulment of her marriage in the Philippines.
Since leaving Australia in February 1999, the Applicant has resided in the Philippines, the Sponsor visiting her there on a number of occasions. He has and presently does send money to her, makes telephone contact each week and writes frequently. There is no issue raised in these proceedings as to the genuineness of this relationship.
The Sponsor was born on 9 June 1966 and is employed in Sydney as a customer service attendant with City Rail. He has been so employed since he was 19 years of age.
The subject application for a subclass 309 visa was lodged with the Respondent on 3 March 1999. The Applicant signed the application on the 7 February 1999. In the application it was stated that the Applicant and her husband separated in June 1993. This hardly accords with material from the Applicant set forth in her earlier applications as to her husband, his address, she being married to him and he seeking to migrate with her to Australia in 1995.

The Applicant was interviewed in Manila on 23 September 1999 by an officer of the Respondent. According to notations made at the time (T60, p391) she confirmed leaving her husband in 1993 and last seeing him in 1995. The notation reads:
"23. PA attended i/v as scheduled. Warned on giving false info/statement. PA was assisted by agent Willie Villanueva (WV) in her PV appln. She applied for PV because she wanted to work to be able to support her children in the Phils. WV completed her PV appln form and made up the story for her PV appln – that NPA's are after her. PA admitted to have signed the PV appln form although she knew that the reason stated was not at all true. She was invited to attend an interview but she did not attend as WV advised her not to attend, as her appln will be refused anyway. She applied for review after the refusal of her PV to prolong her stay in A/a then lodged an appeal with the Minister.
At this point, I explained to PA the effect of her applying for PV in her migration appln and that she will be subj to character assessment then asked for her comments if her appln gets refused. PA started crying and said that she approached the wrong people. She knew that she was given wrong advice but she still lodged a PV appln because of her children who were alone in the Phils. Their children were living by themselves in the Phils."

The notes further record the Applicant as saying that her agent "made up the story for her protection visa application – that she is being a haunted [sic] by NPA's". The Applicant claimed (T60, p398) that "she did not understand what she was doing, agent did it all, she just needed to stay in A/a to work to support her children". Yet in her evidence before the Tribunal the Applicant denied saying that she wanted to come to Australia to work or stating this to the officer. The Applicant also said that the Respondent's officer "asked me the same question time and again, so gave them the answer they wanted"; that is, that the agent "made up the story".
applicant's allegations against officers of the respondent
At the hearing of this matter on 29 August 2000, the Applicant gave evidence to the following effect:

In March 1999 she was interviewed by a Ms Alegro at the Australian Embassy in Manila. The Applicant says that she was asked the same question "over and over", and was told that she had acted against the law. She says that questioning was forceful and Ms Alegro had stated that she did not believe the Applicant. According to the Applicant: "so I changed my answer the way she wanted to hear it – I told her it was made up by the agent – she stopped questioning me, I went home".
In July 1999 again at the Embassy she had a discussion with Ms Rachel Gibbs and according to the Applicant: "Ms Gibbs was very rude, abused me, called me a liar, a bad person and said if it was up to her she would refuse the application". According to the Applicant Ms Gibbs repeated her allegation that the Applicant "was a liar".
A couple of months later, in September 1999, the Applicant was again interviewed by Ms Alegro at the Australian Embassy. According to the Applicant: "the same thing happened, I was asked the same questions, I told her that what was on the refugee form was true. She said she did not believe me, I was crying. Everything I did was for the benefit of my children. Ms Alegro again said that it was not true."

The Sponsor said that in July 1999 he went with the Applicant to the Australian Embassy. He spoke with Ms Gibbs and she "spoke to us very arrogantly". Allegedly Ms Gibbs told the Sponsor that it was not a good idea for him to have come to the Philippines and that she could not approve of the application unless the Applicant and the Sponsor first married. She also immediately accused the Applicant of being "a liar". The Sponsor said that he was upset at the way he was talked to as an Australian citizen and he concluded that Ms Gibbs did not want to discuss the matter with the Applicant and the Sponsor at all. According to the Sponsor, Ms Gibbs called the Applicant "a liar on at least three occasions.
The Sponsor made some notes after visiting the embassy and so far as they are relevant they read:
"Call embassy talk to Rachel Gibbs, supervisor. Barbara still waiting on file how much time/money/effort/cost me to go over to prove the genuiness of (indecipherable) mention Rachel's attitude and if she were doing the job she would not approve application. She (indecipherable) called Susan a liar on letters, asked who is doing the character approval job and when the job will be filled". (Exhibit C)

The Sponsor further noted:
"Seen Rachel Gibbs no corro from you, accused Susan for lying, no one doing job, no idea when job to be filled and she would not approve application if she was done the job on character".

In light of the above allegations the hearing was adjourned in order for the officers of the Respondent to be given the opportunity to answer the matters raised against them. This they did by sworn evidence upon which they were cross-examined. Ms Gibbs in her witness statement, which she affirmed, stated:
"…
5. I moved to the position as head of skilled migration on 1 July 1999. On 20 July 1999, I was called to the counter. The applicant was at the counter with her husband Mr Shilling. I do not recall seeing them, but have obtained information from the computer records held at Post, which contain my notes of our conversation. Mr Shilling advised that their solicitor Barbara from Parish Patience had told them she'd arrange for him and the applicant to see me when Mr Shilling returned to the Philippines. I stated that I had received no such request, but nonetheless explained that a decision on the applicant's file would not be made until such time as the good character requirement was considered. I explained that I was no longer one of the SMOs in Family Migration and that my position had not been filled (as there were absences due to staff leave). I was unable to advise when a decision would be made on the application, but stated that it would probably be some time before a decision was made. My reason for this would have been due to a large backlog of cases at that time, requiring assessment under the Character provisions of Section 501 of the Migration Act.
6. During the course of our conversation, the applicant, Mr Shilling and I discussed the applicant's immigration history. The applicant claimed that she did not understand what she was doing when she applied for a Protection Visa in Australia and that an agent was responsible. She stated to me that she needed to stay in Australia, so that she could work to support her children. I stated that I found it hard to accept that the applicant did not understand what she was doing. I explained the Protection Visa process and that I did not accept that a person could go through that process and not understand exactly what they were doing. Mr Shilling asked to see the Minister for Immigration and I explained that he was in Canberra. Mr Shilling then asked to see the Ambassador and I stated that he could try to obtain an appointment, but that the Ambassador did not get involved in individual immigration cases. Mr Shilling stated that there was nothing for them to do, but wait in that case, and I agreed. I stated that a decision would be made as soon as possible, but that I could not give them a time frame. I stated I would record our conversation in the computer record casenotes, which I did." (Exhibit 2)

In a further statement made by Ms Gibbs, also affirmed, she stated:
"…
2. I have read the transcript evidence of Ms Alisbo and Mr Shilling in relation to the conversation I had with them on 20 July 1999, and I say as follows: the computer records of my conversation with Ms Alisbo and Mr Shilling are a true account of what was said on this day. As is my practice I made the notes of the conversation immediately on returning to my office.
3. At no time did I call Ms Alisbo a "liar", or a "bad person". I also did not say "if it was up to me I would refuse her application". I said that I found it hard to accept that she did not understand what she was doing in applying for a Protection Visa. I said that I did not accept that a person could go through that process and not understand what they were doing. I said this because I worked in the Onshore Protection area of the Department Victoria, as a decision maker, from November 1994 to December 1997. I therefore understood the process well.
4. As I sent Ms Alisbo a letter on 12 May 1999, regarding the Section 501 assessment, I would have read her file, and the computer records of her case, as was my practice, before I saw them at the counter. I would therefore have known the circumstances under which I sent Ms Alisbo a letter under Section 501 of the Migration Act.
I explained that I was no longer responsible for making the decision on Ms Alisbo's file, and that my position had not been filled. I was unable to say when my position would be filled because although there were six Australian staff at Post, four at the SMO level, in times of annual leave etc, it was generally one of the two Family Stream SMO positions which were not filled. I was about to embark on five weeks leave myself at the time, starting 29 July. I knew that my job as SMO Skilled was to be filled, but I was unclear what arrangements the PMO had made to fill my previous SMO Family Stream position.
6. At no time did I suggest to Mr Shilling that he should not have come to the Philippines, nor did I suggest that he sell his belongings in Australia and move to the Philippines to save the Department money. I did not say that I would not approve the case unless Mr Shilling and Ms Alisbo got married. I was not the case officer at the time, so the decision on the application was out of my hands. Nonetheless, as I understand it, the decision in question at the time of my conversation with Mr Shilling and Ms Alisbo involved Ms Alisbo's character (because of her immigration history). It did not at that time involve consideration of whether Ms Alisbo was free to marry.
7. At no time did I suggest to Mr Shilling that he leave the Embassy. According to my notes of the conversation, I explained to Ms Alisbo and Mr shilling that I was not the case officer for their application any longer (since I no longer worked in Family Migration Section). I stated that I was unable to advise when a decision on their application would be made. As my position had not been filled at the time, I was unable to refer them to another decision maker. Mr Shilling said that there was nothing for them to do but wait, and I agreed, adding that a decision would be made asap.
8. It has always been my practice to speak to clients when asked, and refer them back to their migration agent where appropriate. I have never refused to speak to a client because they were represented. I therefore do not accept Mr Shilling's statement that I said: "there's no point of you being here with the children and any dealings you want to do with this department you have to do them through your solicitor because that's the course of action that she told me that I had taken". I believe my notes of our conversation clearly indicate that I did try to explain the situation to Ms Alisbo and Mr Shilling, but also that I was no longer the decision maker on Ms Alisbo's spouse application.
9. As I have stated previously I do not recall this conversation with Ms Alisbo and Mr Shilling on 20 July 1999. I can only explain what is my normal practice, and only re-state that I believe my computer case notes are an accurate reflection of that conversation. Manila is an extremely busy Post. Over one thousand applications were granted in the spouse/fiance visa sub-classes each year while I was at Post. I personally refused approximately forty applications under Section 501 of the Migration Act, during my Posting. I interviewed hundreds of clients and sponsors at the counter, in my office and over the phone in connection with their applications before the Department. I made hundreds, possibly thousands of decisions on applications under all visa sub-classes at the Post." (Exhibit 3)

In the course of her oral evidence before the Tribunal Ms Gibbs said that she would not have called the Applicant a liar, although she did say that she did not believe her. When referred to the notes made by the Sponsor, she denied abusing the Applicant "for lying" but said that she did indicate that she did "not accept what she [the Applicant] said". It would have been out of character for her to have used the words alleged. She did go to some length to explain to the Applicant what had happened.
Ms Emerita Alegro in her sworn evidence said:
"…
3. I have some recollection of my interviews with Ms Alisbo in addition to having referred to my notes of the interviews with her. I interviewed her in relation to her migration application on 3 March 1999 and 23 September 1999.
4. The first interview was a standard initial interview of the kind conducted with all spouse migration applicants, but with extra issues to be covered where the applicant had previously applied for a protection visa in Australia. As is standard practice, I recorded my notes of the interview as the interview progressed – as I asked a question and received a reply I would type the details into the computer record in IRIS. I conducted the interview in the normal manner in one of the interview rooms used for the purpose. When interviewing, the door to the main staff work area is always open for the safety of the interviewer. I do not recall anything unusual about the interview with the applicant, although it was some time ago and I have conducted many interviews since then.
5. I re-interviewed the applicant on 23 September 1999 at the request of Senior Migration Officer Ross Smyrk. Again, I conducted the interview in the same manner in the interview room, and recorded my interview notes in the same way. I have a recollection of this applicant starting to cry when I put the character issues to her to invite her comment. This is again, standard practice, where it is considered that there are character issues, as the applicant is required to be given natural justice by having a chance to respond to the issues. I recall offering her a glass of water because she was crying. At the end of the interview, I explained to the applicant that her case would be referred back to the Senior Migration Officer for assessment. I have never met the sponsor in this particular case.
6. I have read the transcript of evidence of Ms Alisbo in relation to the interviews I conducted with her on 3/3/99 and 23/9/99. I don't recall specifically in the interviews with Ms Alisbo about whether she wanted to bring her child into the interview room, but as a standard practice at the office, younger children are allowed in if there is no other carer but adult children are discouraged as are other adults, who can often interrupt the interview. At the beginning of every interview with spouse migration applicants it is standard practice to alert the interviewee that it is an offence under the Migration Act to give false or misleading information. I always state this at the beginning of every interview as I did with Ms Alisbo, but I don't recall ever repeating it during any interview. I do recall ms Alisbo crying, but only after I put the character issue to her in the normal manner so that she had an opportunity to respond as the other assessing officers and I do in every other interview, to ensure that the applicant is given natural justice and allowed to respond to the character issue. I don't recall the interviews being difficult or having to repeat questions – at the second interview I based my questions on the points that Mr Smyrk raised in his casenotes (at casenote # 19 on 8 September 1999). I am not in the habit of repeatedly asking the same question and I do not use expressions such as "I don't believe you" or "it's against the law" nor do I shout, as there is no need – the interview process is only to cover the issues and record the applicant's responses so that an assessment can later be made. I always record the applicant's responses and the progress of the interview, as well as any unusual incidents, in the interview casenotes, as the interview progresses. We have IRIS computer terminals in the rooms for this purpose. Ms Alisbo's responses are as indicated in my casenotes of the interviews. I am never forceful in an interview as Ms Alisbo claims as there is never any need. At any interview if there is anything unusual or the applicant is difficult, it is also standard practice for the Australian Senior Migration Officer to be called in to the interview.
7. I conduct about 70 to 80 spouse migration interviews per month, of which about 5 to 10 of these per month have character issues arising from the applicant having applied for a protection visa while in Australia. I always conduct these interviews in a courteous and professional manner as I am aware that some of the issues can be sensitive for the applicant. I have never once been subject to any complaints about my interviewing manner." (Exhibit 4)

In the course of her oral evidence before the Tribunal Ms Alegro said that she did remember the interview, remembered the Applicant starting to cry but denied saying that she did not believe the Applicant or that she repeated the questions over and over.
The evidence given by the officers accords with notes made by them at or shortly after the interviews with the Applicant and with the Sponsor in July 1999.
The Applicant was clearly upset and distressed by the position in which she found herself. The Sponsor likewise was distressed at the situation in which they found themselves. However, the Applicant has shown by her contradictory evidence and her preparedness to make false statements, a propensity to seek to mislead and be untruthful. She is clearly an emotional lady, who being in her relationship with the Sponsor, separated and financially partly dependent upon him, is susceptible to temptation to rely a version of events which may not be in accord with the factual situation. On the other hand the Tribunal sees no reason why it should not accept the officers of the Respondent as witnesses of truth.
Whilst it is clear from the evidence of the officers that the conduct of the Applicant, in relation to her earlier applications and whilst in Australia, cast doubt on her character, and no doubt this was relayed expressly or impliedly to the Applicant and the Sponsor, the Tribunal does not accept the evidence of the Applicant as to what was allegedly said by the officers or their alleged behaviour. This evidence of the Applicant is not accepted by the Tribunal, and the fact of it having been given by her reflects adversely on her character. The sponsor's notes were made in response to the emotional state of the Applicant. To the extent that they purport to record words used by the officers and are in conflict with the evidence of the officers, the evidence of the latter is preferred.
improper conduct reflecting adversely on the applicant
The Respondent maintains that the character of the Applicant is adversely affected by acts or omissions committed by her, both incidentally to applications being made by her for a visa and during the time she resided in Australia. Each act or omission is significant on its own but when considered together they materially impact on the enduring moral qualities of the Applicant's character. They are summarised as:

On 14 July 1995 the Applicant applied for a "conventional family" class of visa. She included her husband as one also wishing to migrate to Australia together with her four children, one whom was then over 17 years of age. She referred to her status as "married".
This application was refused. At that time the husband was working in Saudi Arabia and the parties were separated:

In her application of 31 July 1996 for a tourist visa the Applicant incorrectly indicated that she had not previously applied to enter Australia;
On 24 August 1996 the Applicant entered Australia on a six-month visitor visa. She did not depart Australia on expiration of the visa. She applied for the visa in order to be able to work in Australia and earn money:
The Applicant whilst in Australia and on 11 November 1996 applied for a protection visa. It was refused. She applied for review to the Refugee Review Tribunal, the refusal was affirmed. She requested ministerial intervention. It was declined. In each instance she knowingly and in concert with others relied upon grounds which were at least in part false:
Being invited to attend an interview in connection with her protection visa application, she did not do so:
The Applicant did not advise the Refugee Review Tribunal or the Respondent during the review process, that the grounds upon which she was relaying were at least in part false and misleading:
A condition of the extension of the Applicant's visa during the review, and application for intervention process, was that she not work. She did work in breach of a condition of her visa:
The Applicant has maintained her propensity to be untruthful in the evidence she gave before the Tribunal. The Tribunal accepts the evidence of the Respondent's officers and rejects that of the Applicant where it is in conflict with such evidence. The Applicant was also not truthful in her evidence as to the material set forth in her protection visa application.

the character test

As was submitted on behalf of the Respondent, before finding a non-citizen to be not of good character due to past or present general conduct, the Minister's Direction requires a decision-maker to have regard to all relevant factors. Evidence of recent good character is relevant. It is also of moment to consider amongst other factors, whether the non-citizen has been involved in activities indicating contempt or disregard for the law, whether there has in connection with any application for the grant of a visa or any kind of government grant been the provision of a bogus document or the making of a false or misleading statement, and whether the non-citizen has made a false or misleading declaration on an approved form as defined by the Act.
The determination of character is primarily an issue of fact. The meaning of "good character" has been judicially determined as:
"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 aptly proved as a fact, whilst the latter is a review of subjective public opinion. " (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431).

Again:

" 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."
(Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187).
In Goldie v Miniter for Immigration and Multicultural Affairs [1999] FCA 1277 it was said: "the concept of good character in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but 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 that it is for the public good to refuse entry".
A person's character is thus an enduring moral quality formed by a history of acts and omissions and entails thereby an assessment of the likely future conduct and behaviour of a person."

discretionary considerations

In the event of it being found that a person does not satisfy the character test a decision-maker is then required to exercise the discretion as to whether to refuse or cancel a visa as the case might be. The various primary and other considerations referred to in Direction 17 are then to be assessed. The primary considerations as earlier detailed comprise the protection of the Australian community and members of it, the expectations of the Australian community, and in cases involving children, the best interests of the child or children.
Protection of the Australian community entails consideration of the seriousness and nature of the conduct, the likelihood that it will be repeated including any risk of recidivism, and whether visa refusal or cancellation may prevent or discourage similar conduct. This is the meaning of general deterrence. It was noted on behalf of the Respondent, and with this the Tribunal concurs, that relevant offences under the Act including the making of a false or misleading statement in connection with an entry or stay in Australia are serious. The general deterrence factor as already indicated may well operate to deter others from committing similar offences.
The Australian community expects non-citizens to obey the country's laws.
Apart from the abovementioned primary considerations other factors are relevant. These are given less weight than the primary considerations, but they are of moment. These factors have earlier been detailed in these reasons.
submissions and decision
It is submitted on behalf of the Respondent that the Applicant is not of good character. She has been a party to the provision of false and misleading information to the Respondent. She is an educated lady, fluent in Tagalog and English. She knew at the time she lodged her protection visa application that material contained in it was false and misleading. She made the application with the intention of obtaining work and work rights in Australia. She repeated her false and misleading statements in her review application and caused them to be repeated in the application for ministerial intervention. She failed to attend a Refugee Review Tribunal hearing, a clear inference being drawn, that this was on account of her awareness as to at least part of her claim being untrue. In her application for intervention she caused the misleading and false information to be repeated.
The Applicant did not depart Australia on 10 February 1999 and worked in Australia contrary to a term of her visa.
Further, and in relation to recent conduct in the course of her interview with officers of the Respondent in March 1999, the Applicant confirmed her participation in the providing of false and misleading statements in her protection visa application, and the purpose of her visit to Australia being to obtain employment. She also at that time confirmed that her relationship with her husband terminated in June 1993. In a later interview in September 1999 she affirmed statements earlier made by her. However, in the course of her evidence before the Tribunal she sought to retract some of the statements earlier made.
The Tribunal is satisfied that the Applicant is not a witness of truth. Her recent conduct is consistent with that in which she engaged at an earlier time. Further, she has displayed a lack of regard for Australia's laws concerning migration. There is a distinct possibility that she could act contrary to the law on a future occasion.
The lack of honesty displayed by the Applicant from 1995 up until recent date, referrable to her various visa applications, and her general conduct as set forth earlier in these reason, is sufficient to enable the Tribunal to conclude that she is not of good character. It does so find.
As to the exercise by the Tribunal of the discretion invested in it, the seriousness of her conduct, the likelihood of her repeating such conduct if the occasion should arise, and the effect that a visa refusal might well have on other like-minded non-citizens, and like minded migration agents are relevant in this regard. The making of false and misleading statements, as earlier indicated in these reasons in connection with entry or stay in Australia, is conduct which is contrary to the Act, may constitute offences and is very serious. The fact of the Applicant having worked without permission whilst in Australia is also contrary to the Act. It was submitted on behalf of the Respondent, that a refusal would act as a general deterrent against others who might be like-minded, as well as acting as a general deterrent. The Tribunal accepts this submission. It is an expectation of the Australian community that non-citizens should not manipulate the country's migration program for their own personal gain.
The other factors warranting consideration are as already detailed in these reasons. Primarily in this matter, these relate to the position of the Sponsor. There is no issue that the relationship between the Applicant and the Sponsor is genuine. A degree of hardship will be experienced by the Sponsor, as well as the Applicant, in the event of the visa being refused. The Applicant has a brother and his family living in Australia, all other members of her family reside in the Philippines. The brother may well experience some degree of hardship, although no evidence was adduced to this effect. Mention has already been made of the nature of the conduct of the Applicant and of such conduct extending to recent time.
It was rightly submitted on behalf of the Applicant, that it is the Sponsor who is the Applicant, being the only person who could make the application. He is an Australian citizen and his interests warrant due consideration. On behalf of the Applicant stress was placed on the effect separation has had on the Sponsor over the preceding four years, the importance of the relationship to him and it being a matter of public interest that "forms of relationship should be protected". Letting the sponsor "get on with his life" should be a significant consideration.
Direction 17 whilst detailing instances of conduct warranting consideration, and particularly as to the conduct detailed in paragraph 2.6, is, it was submitted, "to be read as a whole". The conduct of the Applicant when measured against other conduct there mentioned is not of the same gravity. The Tribunal however does not see the position in this application being in accord with this submission. The Applicant deliberately engaged in the provision of information which was false, she knowing it to be false and intended to mislead those responsible for the implementation of migration and refugee policy.
Thus it is contended, on behalf of the Applicant and Sponsor the discretionary considerations are such as to out-weigh those that are of primary concern and the allegations even at their highest do not "justify the torment that the parties are going through at this moment".
It is true, that whilst she was in Australia the Applicant did not offend against the law other then acting in breach of the Act.
On the basis of the evidence before it the Tribunal, is not satisfied that the discretion invested in it should be exercised in favour of the Applicant. This is not to say that the Tribunal is without understanding for the position in which the Applicant and Sponsor find themselves. However, they did maintain their relationship with full knowledge of the Applicant's visa position.
Accordingly and or the reasons hereinbefore set forth the decision under review is affirmed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  29 and 30 August 2000, 21 to 24 May 2001
Date of Decision  21 June 2001
Solicitor for the Applicant         M Jones
Solicitor for the Respondent    M Grey