Taylor and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 22

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 22

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/314

GENERAL ADMINISTRATIVE DIVISION		)
Re		Robert Taylor

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date12 January 2005

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – prospective marriage visa – character test – prospective spouse visa refused on the grounds that the visa applicant fails the character test – past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the visa applicant and applicant – examination of the visa applicant’s immigration misconduct – examination of the visa applicant’s past visa applications including a protection visa application – at the hearing applicant conceded that the visa applicant fails the character test because of her numerous contraventions of immigration laws – found that her contraventions were very serious, there is a possibility she would continue her misleading and deceptive conduct, community expectations weigh against the grant of a visa – emotional hardship which the applicant will suffer does not outweigh the visa applicant’s  serious and sustained immigration contraventions – decision of the respondent affirmed.

Migration Act 1958 ss 499, 501, 501(6)(c)(ii)

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Caruso v Department of Immigration and Multicultural Affairs, DP Blow, 30 June 1998, Decision No 13037, unreported

Medyanto v Minister for Immigration and Multicultural Affairs, DP Chappell, 28 November 1997, Decision No 12453, unreported

ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

12 January 2005	Professor GD Walker, Deputy President
Summary

1.      The visa applicant, Adelaida Guevarra, first entered Australia on a visitor visa on 23 March 1997.  At this time, she was married to her first husband, Abelardo Angeles.  On 19 March 1998, she lodged an application for a protection visa which was subsequently refused.  On 4 February 1999, Ms Guevarra lodged a spouse visa application based on her marriage to her second husband, John Bollard (deceased), such application being refused on 10 January 2000.  A second spouse visa application was subsequently refused.   On 8 February 2002, Ms Guevarra lodged a prospective marriage visa application based on her relationship with the applicant, Robert Taylor.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Ms Guevarra applied for a protection visa application and proceeded through the appeals process when she knew that she was not a refugee but because she wanted to prolong her stay in Australia, that she used various names on different immigration forms, and that she made false and misleading statements in her prospective marriage visa application.  The respondent therefore refused Ms Guevarra’s prospective marriage application.  That is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Robert Taylor, was born in Canley Vale, New South Wales, on 22 November 1950 and is aged 54.  Mr Taylor married his first wife in 1970.  He has three children from that relationship, Robert who is aged 33, Melanie who is aged 31, and Shannon who is aged 28.  That relationship ended in divorce after approximately ten years (T p219).  He married his second wife, Karen Glenda Taylor, on 29 December 1996, the marriage ending in divorce on 28 May 2001.  No children were born of that relationship (T p133).  Mr Taylor is employed as a hospital assistant.

4.      The visa applicant, Adelaida Guevarra, (known as Aida Guevarra), was born in Bacolor, Pampanga, the Philippines, on the 1 October 1950 and is aged 54.  She married her first husband, Abelardo Oelacros Angeles, at Pampanga, the Philippines, on 16 May 1970 (T p164).   Eight children were born of this marriage, Catherine who is aged 33, Jennifer who is aged 31, Evelyn who is aged 29, Winnie who is aged 27, Jane who is aged 25, Clare who is aged 23, Nino who is aged 21 and Gina who is aged 19.  All Ms Guevarra’s children reside in the Philippines.

5.      On 22 March 1997, Ms Guevarra arrived in Australia on a visitor visa valid for three months until 22 June 1997 (T32 p293).  On 18 June 1997, she applied for and was granted an extension of her visa, valid until 19 December 1997.  She was granted a third extension on 19 December 1997, valid until 22 March 1998 (T p292).

6.      In early 1998, Ms Guevarra commenced a relationship with Mr John Bollard, who was born on 22 May 1932, and was aged 66 at the time they commenced their relationship.   

7.      On 19 March 1998, Ms Guevarra lodged an application for a protection visa.  In her application, she claimed that she fled from the Philippines because “of the political muslim groupe [sic] that threatened” her life and because “early in 1996 I started to get demands for Protection from the PHIL NATIONAL police because I’ve been confronted always by the Muslim Groupe [sic]” and that if she were to return to the Philippines her life could be in real danger as the threats on her life could be carried out and because they would do whatever they could to harm her (T pp19-30).   On 19 March 1998, Ms Guevarra was granted an associated bridging visa E pending the outcome of her application (T p292). 

8.      On 28 March 1998, an officer of the then Department of Immigration and Multicultural Affairs (“DIMA”) refused Ms Guevarra’s protection visa application on the basis that her claims were not Convention related and as there was no link between the harm feared by the applicant and the five Convention reasons, her application was denied (T3 p34).   Ms Guevarra lodged an appeal of this decision with the Refugee Review Tribunal (“RRT”) on 15 April 1998.  On 20 May 1998, Ms Guevarra lodged an application for a bridging visa A (with work rights) (T p56).  On 26 May 1998, the RRT invited Ms Guevarra to give oral evidence before the tribunal but she declined (T pp53-54).  On 26 June 1998, the RRT affirmed the decision, stating that it was unclear from Ms Guevarra’s application whether she was allegedly being threatened by a Muslim group or by the police and it was unable to satisfy itself in this regard (T5 pp51-55).

9.      On 17 July 1998, Ms Guevarra was granted a bridging visa A (without work rights) valid until 31 July 1998 (T p292).   On 11 August 1998, Ms Guevarra applied for Ministerial intervention (T p324).  She was granted a further bridging visa on 18 September 1998 valid until 26 October 1998 (T p292).  On 12 August 1998, Ms Guevarra divorced her first husband, falsely satisfying the Family Court of Australia that she had been domiciled in Australia for 12 months, when in fact she was only in Australia on a bridging visa.

10.     On 26 October 1998, Ms Guevarra and John Bollard were married (T p74) (John Bollard was aged 67 at the time) and on 25 November 1998, having remained illegally in Australia, Ms Guevarra had a monitored departure from Australia (T p292).   On 4 February 1999, Ms Guevarra lodged an application for a spouse visa based on her marriage with John Bollard at the Australian Embassy in Manila (T p324).  This application included four of her eight children (T p99).  In her application, Ms Guevarra answered “no” to question nine, which asked whether the applicant had previously been to Australia or held a visa for Australia.

11.     On 17 February 1999, Ministerial intervention was refused in respect of her protection visa (T12 p78).  On 23 February 1999, Ms Guevarra was granted a visitor visa valid until 25 May 1999, and on 25 February 1999, Ms Guevarra entered Australia (T p292).  Ms Guevarra did not depart Australia before the expiry of her visa, but remained in Australia as an unlawful non-citizen (for the second time) for a period of 39 days (T p324).   

12.     On 22 May 1999, Ms Guevarra and Mr Taylor met at the home of a friend of Mr Taylor at Carlingford, New South Wales (T p208).

13.       On 3 June 1999, Ms Guevarra was granted a further bridging visa valid until 3 July 1999, when she departed Australia (T p291).

14.     In early 1999, John Bollard developed terminal cancer of the pancreas and by 2000, John Bollard’s condition was such that he required constant medical care.  On 24 October 2000, Ms Guevarra was granted, on compassionate grounds, a visitor visa valid until 30 April 2001, to return to Australia to care for John Bollard (T p291).  This visa was subject to a 8503 condition “no further stay” (T p99). She entered Australia on 30 October 2000 (T p291).   Ms Guevarra and Mr Taylor commenced a relationship upon Ms Guevarra’s return to Australia (T p208).

15. On 10 January 2000, Ms Guevarra’s application for a spouse visa, based on her marriage to John Bollard, was refused on the grounds that she did not pass the character test in s 501 of the Migration Act 1958 (“the Act”) (T p96). 

16.     On 5 February 2001, Ms Guevarra made an application to DIMA that the 8503 “no further stay” condition be waived.  John Bollard died on 11 February 2001 (T p176).   On 20 February 2001, Ms Guevarra’s application to DIMA to waive the 8503 condition was refused and she was notified that she was to depart Australia on or before 30 April 2001 (T p98).  Ms Guevarra did not depart Australia before that date, but remained in Australia as an unlawful non-citizen for the third time.

17.     In March 2001, Ms Guevarra’s and Mr Taylor’s relationship became intimate and in April 2001, Mr Taylor proposed to Ms Guevarra and they commenced living together (T p209).

18.     On 1 May 2001, Ms Guevarra was granted a bridging visa valid until 15 May 2001.  She was granted further bridging visas E on 15 May 2001 valid until 29 May 2001 (T p108), 29 May 2001 valid until 30 May 2001 (T p117), and 31 May 2001 valid until 12 June 2001 (T p291).  On 28 May 2001, Mr Taylor was divorced from his wife, Karen Glenda Taylor.  On 2 June 2001, two months after commencing to live together, Ms Guevarra departed Australia (T p291).  On 4 August 2001, Mr Taylor went to the Philippines, returning on 20 August 2001.  He went a second time on 27 October 2001, returning on 14 November 2001 (T p224).

19.     On 8 February 2002, Ms Guevarra lodged a subclass 300 prospective marriage visa application with the Australian Embassy in Manila (T20 p125).  Also lodged with the application, was a Notice of Intended Marriage stating that Ms Guevarra and Mr Taylor intended to marry on 17 May 2002 (T p219).  In her application, Ms Guevarra answered “no” to question 67 that she had never been removed from Australia (having had a monitored departure on 25 November 1998). She also did not include in question 69 that she had lived in Australia for more than 12 months.  On 23 September 2002, the second secretary (immigration) at the Australian Embassy advised Ms Guevarra that he was considering refusing her prospective spouse application and inviting her to comment (T26 p227). 

20.     On 23 September 2002, Ms Guevarra was interviewed by an immigration officer at the Australian Embassy (T p328).  She stated at that interview, that a friend suggested she apply for a protection visa so “that she will not get caught” and that she understood it was the only way that she could prolong her stay in Australia.  She acknowledged that she knew she was not a refugee. She also stated that she did not tell Mr Taylor about her protection visa application until only a few days before the interview date (T p329).  On 26 September 2002, Mr Taylor made submissions on behalf of Ms Guevarra and on 28 September 2002, Ms Guevarra made submissions on her own behalf, stating, inter alia, that she admitted that she lodged a protection visa application when she was not a refugee because she was told that she would not get caught, she did not know John Bollard had cancer until he phoned her and asked her to come to Australia to care for him, she overstayed in Australia because she was caring for John Bollard, and that she has met another person who has showed her true love (T28 p230).  Further submissions were made by Ms Guevarra’s solicitors, Virginia Odtojan & Associates, on 15 October 2002 (T31 p247) and on 4 December 2002 (T35 p296).  On 20 August 2003, the Australian Embassy in Manila informed Ms Guevarra’s solicitor that due to the complicated issues involved, her application was still being processed, with processing time usually ranging between 18 and 24 months (T p313). 

21.     In February 2004, Mr Taylor visited Ms Guevarra in the Philippines.

22. On 26 February 2004, having considered the submissions lodged on behalf of Ms Guevarra, a delegate of the respondent decided to refuse the grant of a visa to Ms Guevarra on the ground that she did not pass the character test because of her past and present general conduct including that she wilfully abused Australia’s migration system by lodging a protection visa application when she knew she was not a refugee and that she had provided false and misleading information on both her form 26 (medical) and form 47SP (prospective marriage), and having decided to exercise her discretion under s 501(1) of the Act to refuse the grant of a visa (T40 p321). On 19 March 2004, Mr Taylor lodged an application for a review of this decision by the tribunal.

23. At the hearing, the applicant was represented by Craig Colborne, of counsel, instructed by Virginia Odtojan & Associates, and the respondent was represented by Jacqueline Gleeson, solicitor, of the Australian Government Solicitor’s office. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with a supplementary bundle of documents, taken into evidence collectively as Exhibit R1, and the evidence tendered by the parties at the hearing. Mr Taylor gave oral evidence in person and Ms Guevarra gave oral evidence by telephone from the Philippines.

Relevant Law and Policy

24. Under s 501(1) of the Act, 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. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:

For the purposes of this section, a person does not pass the character test if:

…             

reasonably suspects has been or is involved in criminal conduct; or

(c)       having regard to either or both of the following:

…

(ii)       the person’s past and present general conduct;

the person is not of good character; …

25. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

26. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

27. The issue for the Tribunal to determine in this case is, therefore, whether Ms Guevarra is not of good character having regard to her past and present general conduct so as to be precluded from the grant of subclass 300 prospective marriage visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence

28.     Mr Taylor gave oral evidence.  Ms Guevarra gave oral evidence by telephone from the Philippines.  A Tagalog interpreter was sworn in to assist her with the giving of her evidence.

29.     This case has a complex history, involving a protection visa application, three successive spouse visa applications, two sponsored by the visa applicant’s second husband and a third sponsored by the review applicant, another spouse application sponsored by the review applicant that was prepared but not lodged because it was found to be on a superseded form, several bridging visas, the alleged submission of false evidence to the Family Court in divorce proceedings and false or misleading statements allegedly made in various of the above applications and in the proceedings before the tribunal.  The main transgressions relied on by the respondent relate to the protection visa, working without permission, the third spouse visa application and a visa overstay.  The applicant does not dispute these charges, except to contend that the unlawful overstay was no more than seven days, as against the 39 days asserted by the respondent.  Of the other allegations, some are admitted and some not. 

30.     In relation to most of the admitted allegations, the applicant argues that they stemmed from inadvertence, bad advice, lack of education or similar causes that mitigate their apparent gravity. 

31.     For the sake of clarity it is convenient to set out in full two tables prepared and tendered by the respondent.  They are a chronology (Exhibit R3) and a table comparing representations of fact made in the visa applicant’s applications and statements made in her statutory declaration of 20 August 2004 (Exhibit A6) prepared in connection with these proceedings.  That comparative table is Exhibit R5.  The accuracy of Exhibits R3 and R5 is not disputed by the applicant.

CHRONOLOGY
     Exhibit R3

DATE	EVENT	SOURCE
22.03.1997	Visa applicant arrives in Australia	T docs page 324
22.03.1997	Visa applicant commenced relationship with John Bollard according to PV application form C and draft application for permanent visa sponsored by Mr Taylor	T docs page 20 and annexure “C” to Mr Taylor’s statutory declaration
00.07.1997	Visa applicant commences living with John Bollard according to PV application form C	T docs page 22
00.08.1997	Serious relationship commences between visa applicant and John Bollard according to Mr Bock, migration agent (in 8.1998) and 1.2002 migration application	T docs 58, 129
00.09.1997	Visa applicant meets John Bollard according to 12.2000 migration application	Form 47SP dates 4 December 2000
00.11.1997	Relationship commences between visa applicant and John Bollard according to 12.2000 migration application	Form 47SP dated 4 December 2000
19.03.1998	Visa applicant lodges false PV application	T docs page 8
15.04.1998	Visa applicant makes application for review of decision to refuse PV application	T docs page 52
00.04.1998	Visa applicant found to have been working without permission to work	DIMIA Compliance Section form with date stamp 27 April 1998
20.05.1998	Visa applicant seeks permission to work	T docs page 36
05.08.1998	Visa application [sic] makes request to Minister to exercise his discretion in her favour relying on facts falsely stated in PV application	T docs page 58
12.08.1998	Visa applicant obtains decree nisi from Family Court based on Court’s incorrect belief that visa applicant was domiciled in Australia	T docs page 164
26.10.1998	Visa applicant marries John Bollard	T docs page 74
11.11.1998	Visa applicant applies for permanent visa subclass 309 (spouse) sponsored by John Bollard	Form 47SP dated 24 November 1998
25.11.1998	Visa applicant has a monitored departure from Australia	T docs page 77, 324
25.02.1999	Visa applicant’s second arrival in Australia	T docs page 324
22.05.1999	Visa applicant and Mr Taylor first meet, according to 1.2002 migration application	T docs page 134
03.07.1999	Visa applicant departs from Australia, having overstayed her visa by 39 days	T docs pages 230, 324
10.01.2000	Application for permanent visa refused	Letter from DIMIA to visa applicant dated 10 January 2000
30.10.2000	Visa applicant’s third arrival in Australia (visa granted due to John Bollard’s illness); lives with Mr Taylor from this time according to draft application for permanent visa sponsored by Mr Taylor	T docs 324 and annexure “C” to Mr Taylor’s statutory declaration
04.12.2000	Visa applicant makes second application for permanent visa subclass 309 (spouse) sponsored by John Bollard	Form 47SP dated 24 November 1998
11.02.2001	John Bollard dies	T docs page 176
00.04.2001	Relationship between Mr Taylor and visa applicant begins	T docs page 134
07.06.2001	In application for medical examination for Australian visa, visa applicant falsely states that her previous occupation in the last 5 years (ie back to 06.1996) was housewife
00.06.2001	Form 47SP for application for permanent visa prepared but not lodged	Annexure “C” to Mr Taylor’s statutory declaration
12.06.2001	Visa applicant departs Australia	T docs 324
12.11.2001	Form 40SP “Sponsorship for partner migration to Australia” completed by Mr Taylor	T docs page 146
23.11.2001	Notice of intended marriage signed by Mr Taylor	T docs page 177
08.02.2002	Form 47SP “Application for migration to Australia by a partner” Visa Applicant makes false statements in application for migration to Australia concerning previous travel to Australia.	T docs page 127

The relevant applications are:

1)       PV application dated March 1998 (T docs pages 8 to 33)

2)       November 1998 spouse visa application (Supplementary bundle)

3)       December 2000 spouse visa application (Supplementary bundle)

4)Draft spouse visa application (annexure “C” to Mr Taylor’s statutory declaration made 27 July 2004)

5)February 2002 spouse visa application (T docs pages 125 ff)

COMPARISON OF APPLICATIONS AND STATUTORY DECLARATIONS

MADE 20 AUGUST 2004

Exhibit R5

APPLICATION	REF	ADDRESS	EMPLOYMENT HISTORY	OTHER MATTERS
PV application dated March 1998	T docs pages 8 to 33	With John Bollard from arrival in Australia (q. 11 and 31)	Occupation: sash contractor (q. 14) No reference to work in Macau (q. 28 and 30)	False claims concerning refugee status
November 1998 spouse visa application	Supplementary bundle	At Campsie from March to November 1997 (q. 74) With John Bollard from November 1997 to November 1998	Unemployed 1963 to 1993 (q. 32) 1993 to 1997 housekeeping at Red Cross Macau (q.32)
December 2000 spouse visa application	Supplementary bundle	At Campsie from March to November 1997 (q. 60 and 71) With John Bollard from November 1997 to November 1998 With John Bollard from October 2000 (q. 71)	Usual occupation: housewife (q. 29)	Met John Bollard in September 1997 at Wynyard (q. 59)
Draft spouse visa application prepared around June 2001	Annexure “C” to Mr Taylor’s statutory declaration made 27 July 2004	With John Bollard from arrival in Australia to February 1999 With Mr Taylor from October 2000 to June 2001	Usual occupation: homemaker	Says have not held a BE (but see T docs page 106, 109 and 119)
Form 26 Medical examination for an Australia visa stamped June 2001	Supplementary bundle	Previous occupation for the last five years: housewife	Said had been living in Australia for 6 months.
February 2002 spouse visa application	T docs pages 125 ff	No details of address from March 1997 (q. 69)	No details of visits to Australia, except says that met Mr Taylor in Carlingford in May 1999 and began relationship in April 2001 (q. 57 and 58)
Statutory declaration	Refers to a failed business (para 9)	Met John Bollard through a common friend in September 1997 (para 7)

32.     The most important contravention put forward by the respondent on the character issue is the visa applicant’s protection visa application dated 19 March 1998.  In it Ms Guevarra falsely claimed that while she was in the Philippines her life was threatened by a politically affiliated Muslim group and that she had been subjected to demands for protection money by that group and by the Philippines National Police.  She claimed that she had fled to Macau and Hong Kong to escape their threats and demands and that her life would be in danger if she were to return to the Philippines (T pp24-27).  In response to two questions in the protection visa application she failed to mention that she had lived in Macau from 1993 to 1997.  She claimed to have merely visited Macau from 10 December 1996 and 14 March 1997 (T p21) and omitted any reference to her years in Macau when answering the question seeking details of all addresses outside Australia where she had lived for 12 months or more in the last 10 years (T p22).  When asked in cross-examination to explain those false answers, she replied, “I don’t recall, I don’t know who filled in that form.  I can’t answer that question, I was seeking help at the time”.  It was put to her that she omitted to mention her four years in Macau because the truth would have shown that she had worked outside the Philippines before coming to Australia, and that would have undermined her protection visa claims.  She replied, “I don’t understand what’s happening at that time, even the person was speaking to.  I only had John Bollard helping me”. 

33.     This obfuscation was typical of her evidence.  It was also inconsistent with her earlier claim that she had only been helped by Mrs Li Guevarra.  Ms Guevarra also made a false declaration that the information that she supplied on the protection visa form was correct (T p30).  She now acknowledges that those claims were false.  At her interview in September 1999 (Exhibit R4) she openly admitted that her reasons were bogus, but said that many Filipinos had done the same and that was why she was not worried.  After the prompt rejection of her protection visa application, she sought a review of the decision to refuse it on 15 April 1998, and later on 5 August 1998 made a s 417 request for Ministerial intervention in her favour, knowing at all stages that the basis of her claims was false.

34.     In two places in the protection visa application Ms Guevarra also indicated that she had been in a de facto relationship since the date of her arrival in Australia with a person living at 322 Abercrombie Street, Chippendale, New South Wales which was the address of John Bollard, who she later married (T pp20, 22).  She later repeated that claim in her first spouse visa application sponsored by Mr Taylor, which they endeavoured to lodge with the DIMEA office in Manila but were unsuccessful because the particular form they had used had been superseded (Exhibit A2 pp3, 22).  At the hearing, however, she was adamant she did not commence living with John Bollard until November 1997.  She explained this inconsistency by saying that she had been rushing to do the paperwork, that she was confused, that it was a long time ago and that she could not remember.  At two points in her cross-examination, however, she said it was true that she had lived with John Bollard from the time of her arrival.  When confronted with these contradictions she became agitated and angrily said: “Why are you asking me these questions?  My husband has died.  The good things that I have done for him are not being mentioned”.

35.     During her examination-in-chief she explained that while she was living at Petersham with Mrs Li Guevarra (no relation) and her husband, Li suggested that she seek a protection visa so that she could not be sent back to the Philippines.  She had asked the visa applicant about her background before she came to Australia and, having heard her account, told her that she would not be approved if she put that story forward.  Li thereupon drafted a statement incorporating the untrue claims about the Muslim group and similar matters and told her to copy it out in her form, which she did, despite knowing that it meant she was putting forward a claim on a false basis.  She said she now realised the bad effect the false claim was having upon her and conceded that it was wrong.  “My sin was my low education, so I couldn’t understand”.  In other parts of her evidence she repeatedly put forward her low educational attainment (up to grade six) as a justification for wrongdoing.  But she was a mature woman who had raised eight children, for several years on her own, had worked in three countries and had established a successful business manufacturing sash windows and other building supplies in the Philippines.  She was well able to understand what she was doing when she lodged a false claim.

36.     In her statutory declaration prepared for these proceedings (Exhibit A6) Ms Guevarra further seeks to explain her conduct by stating that, “… I did not fully comprehend what is meant by being a refugee and being fearful of one’s life and equated it with my own personal experiences, my failed business, my husband and all the personal fears in my life” (paragraph 9).  (The business, incidentally, had failed only because of the Mount Pinatubo eruption, and she had successfully re-started it later).  Yet in oral evidence, as was noted above, she said that when Mrs Guevarra said her actual experiences would not be enough to get her approved for a protection visa, she copied down what Li wrote, knowing that she would be making a protection visa claim on a false basis.

37.     Among the numerous other admitted false statements Ms Guevarra has made in immigration forms and declarations are the assertions in the form 26 “Medical examination for an Australian visa” stamped 7 June 2001, in which she stated that she had been living in Australia for six months (T supplementary bundle p74).  In fact she had lived in Australia for a total of 32 months over the previous four years, including the eight consecutive months before completing the form.  At the hearing she said that she had been “made to sign” the form by the wife of her migration agent, Robert Bock, and that she could not remember reading the form and had simply wanted to get through the medical examination process. 

38.     In her application for migration to Australia by a partner (Form 47SP) made on 8 February 2002, she falsely replied “No” to the question “Have you or any dependant family members (migrating with you or not) previously been to Australia, held or currently held a visa for travel to Australia” (T p128).  At the hearing she said she had originally answered that question “yes”, but that one of her children had read the application form and told her not to answer yes, because “no is better”.  Thereupon the tick in the “yes” box was whited out and “no” was ticked instead.  On the same form, Ms Guevarra falsely answered “no” to the question “Have you or any other person included in this application, ever left any country to avoid being removed or deported? “ (T p135).  Asked at the hearing why she had done so, she replied that it was “because I was in a hurry to finish, probably”.  Again on the same form she gave a false answer to the question: “In which countries have you lived for 12 months or more during the last 10 years?”  She answered “Macau”, although she had also lived in Australia between 22 March 1997 and 25 November 1998.  Asked at the hearing why she had not also mentioned Australia, where she had lived for over 12 months, she replied “I didn’t realise I had to, to say where I was born or where I had lived.  It was hard for me, a low-educated person”.  These explanations are quite implausible, for the reasons already given.

39.     Claims that she could not remember completing or signing forms, that she did not understand, that she was in a hurry, she could not remember that someone else told her to make a false statement, or that she was confused were an unbroken theme of her evidence.  The Family Court of Australia decree nisi for dissolution of her first marriage dated 12 August 1998 recites that “the court was satisfied that the above named Adelaida Baking Guevarra was domiciled in Australia”.  As to that she said that she remembered hearing her then solicitor discussing the divorce in the court but claimed she did not remember signing any court documents because it was a long time ago.  To the question whether she had told the court that she was living in Australia permanently, she replied, “I didn’t write that.  Why should I write that, I hadn’t yet married John Bollard” − an irrelevant diversion.  The true position at the time was that Ms Guevarra held a bridging visa pending a decision on her second s 417 request for Ministerial intervention dated 5 August 1998 (T pp 58, 292).  She must have been aware of that position.  It may also be significant that she has never claimed that she did not know what “domiciled” means.

40.     Ms Guevarra has also given different accounts of how she met her second husband, John Bollard.  In her interview in February 1999 at the embassy in Manila, she said she had met him through a Filipina friend, Nancy Denth, whose husband was a friend of John Bollard’s.  At the hearing she repeated that statement.  Yet in her second spouse visa application sponsored by John Bollard in December 2000 she wrote that she had met him at Wynyard in September 1997.  At the hearing she said she gave that false answer because “there were so many questions and answers”.  At her interview in September 2002, she said that she had been introduced to John Bollard, not by Nancy Denth, but by a daughter of the Guevarras.  At the hearing she said that she could not recall giving that answer and said that John Bollard sought her out because, he said, he was unwell and needed a carer.  It is quite implausible that Ms Guevarra could be confused on this subject.  When, where and how people meet their spouses are important circumstances in their lives, and in fact are a common topic of polite conversation.  It is not credible that Ms Guevarra could have forgotten these events simply because she had been through so many questions and answers.  If she was confused, it is more likely because she has given so many different versions that she is unsure on which one she should rely at a given moment.

41.     The same pattern appears in relation to her having worked unlawfully in Australia in late 1997 or early 1998.  At the hearing she admitted having worked at a chocolate factory before she began living with John Bollard, but at interviews with departmental officers in September 1999 (Exhibit R4) and September 2002, she claimed that she had never worked in Australia.  At the hearing her explanation for these false statements was that at the time she was “focused on living with John Bollard at Chippendale”.  That explanation could not apply to the September 2002 interview but in any case it is quite implausible.  One does not forget having worked for several months in a chocolate factory simply because at a later stage one lives with somebody.  Again, in her first spouse visa application made in November 1998, she falsely stated that she had been unemployed from 1963 to 1993 (T supplementary bundle p22), when in fact she had conducted her own manufacturing business for several years in that period.  While conducting one’s own business might in a narrow sense be construed as not being “employed” by another, to describe oneself as “unemployed” in those circumstances, as the visa applicant did, is false or at least highly misleading.  When that was put to her at the hearing, she replied that “she was not really working”, that she did not know if it was false and had forgotten the answers she had given. 

42.     Again, in her statutory declaration dated 20 August 2004 (Exhibit A6), Ms Guevarra falsely stated that at her interview on 23 September 2004 she made repeated requests for an interpreter to help with the interview.  When it was put to her in cross-examination that the tapes of the interview disclosed no request for an interpreter, she admitted that she had not asked for an interpreter but said instead that the interviewer did not understand what she was saying, adding that paragraph 42 of her statutory declaration was made up by the people who interviewed her.  It was also put to her that the interpreter was not present only for the last ten minutes of the interview, as asserted in paragraph 43 of her declaration, but was brought in at 10.45 am and remained until 12.00 noon.  To that she simply replied that she did not ask for an interpreter and that the interpreter had been bought in by those interviewing her.  She went on to say that she was not aware of what was contained in the statutory declaration and did not agree with its contents, although she admitted that she had signed it and that her children had read it and discussed it with her.

43.     The tape of the 23 September 2004 interview was transcribed and the transcript was admitted into evidence by consent of the parties after the hearing as Exhibit R7.  The transcript confirms that Ms Guevarra at no time requested an interpreter, in fact at the beginning of the interview she twice agreed that she could speak and write English very well (page 3).  The interview at first proceeded for about an hour, during which time Ms Guevarra repeatedly changed her story on a variety of material points, claiming that she had forgotten or was confused.  (The interviewer summarises some of these contradictions and discrepancies on page 24.)  After an hour of this, the interviewer called in an interpreter “so that we get some straight answers here” (page 42) by eliminating any possibility that Ms Guevarra might not understand his questions.  The interpreter’s assistance made no difference, however, as Ms Guevarra continued to give conflicting answers, explaining that she had forgotten or she was confused, it was a long time ago, she could not remember, and then sometimes she suddenly could remember, that she did not understand or that she had said what others had told her to say.  After another half hour, the interviewer commented, “my questions, I believe, are very clear and you are giving me very direct clear answers and then all of a sudden you are changing these and then claiming you don’t understand or didn’t understand my question” (page 54).   The interviewer, Mr Flewel, displayed commendable patience throughout what must have been a taxing interview (exceeding two hours), but on Mrs Guevarra’s side it was a profoundly unconvincing performance. 

44.     Exhibit R5 tabulates other inconsistencies in Ms Guevarra’s earlier statements, but the above examples suffice to show a consistent pattern of false and misleading statements in her applications and her dealings with the department.  That has continued until the present, and at the hearing in the tribunal.

45.      On the other hand, there is evidence of good character to be considered in the visa applicant’s favour.  Following the departure of her first husband in 1992, Ms Guevarra worked hard to support her eight children and provide a proper home life and education.  Her daughter Catherine Serrano, who is currently finishing a Master of Business Administration degree on a scholarship from her employer company, attests that her mother inculcated in all the children the value of obtaining a proper education, a sense of respect for fellow human beings and a sense of responsibility for themselves (Exhibit A4).  Catherine’s achievements are tangible evidence of the success of Ms Guevarra’s efforts in that respect.  Mr Taylor has referred to her dedication and commitment to John Bollard during his terminal sickness and her courage during that period (Exhibit A2).  That is consistent with the note by a departmental officer that John Bollard’s doctors had stated, “that her presence is absolutely crucial to his health” (T p95).  As Mr Colborne pointed out, there has never been any issue about the genuineness of Ms Guevarra’s relationship with John Bollard.  The evidence also shows that Ms Guevarra has never been charged with any criminal offence. 

46.     As Mr Colborne also pointed out, the respondent has not challenged the genuineness of the relationship between Ms Guevarra and her fiancé Mr Taylor.  The respondent concedes that the relationship has “genuine features”, subject to the reservation that the applicant’s statement of facts and contentions (Exhibit A1) overstates the duration of their friendship before they became engaged and moved in together as being two years when actually it was eight months.  There is also the complication that the draft spouse visa application of June 2001 states that Ms Guevarra lived with Mr Taylor from October 2000, rather than April 2001 as the other evidence indicates.

47.     During their three and a half year separation, the parties have maintained frequent contact by telephone, text messages and more recently by computer webcam connections.

48.     Mr Taylor acknowledged in his oral evidence that he knew from the time of their first acquaintance in 1999 that Ms Guevarra lacked the necessary approvals to remain in Australia and for that reason had to return to the Philippines in July of that year.  When she returned to Australia he learned of her protection visa episode and her overstay, just before or just after John Bollard died on 11 February 2001.  As he put it, “She didn’t really talk about her visa problems.  It did come up, but I was laid back about it”.  In his statutory declaration of 27 July 2004 (Exhibit A2), Mr Taylor indicates that he knew about Ms Guevarra’s status before John Bollard’s death: “I was aware of Aida’s status in Australia and it was difficult to understand why she could not be at his [sic] late husband’s side permanently” (paragraph 11).  Therefore, while he may not have known the full extent of her migration malfeance in the early stages of their relationship, it is clear that he was fully aware of it before he proposed to her in April 2001 (and despite that knowledge he wanted them to get married before she left Australia, but it was not possible) (Exhibit A2 paragraph 16).  He was therefore apprised of her migration history before the draft spouse visa was prepared in June 2001 and well before the effective application was lodged in February 2002.

49.     Mr Taylor has visited Ms Guevarra in the Philippines on five occasions for periods of two to three weeks, using his annual leave or accumulated leave.  His last visit was in February 2004, and he does not plan any more visits until the outcome of this application is known.  He has, however, tentative plans to travel to the Philippines in January.

50.     Mr Taylor says that his health has suffered from the separation and that he is now smoking between 50 and 60 cigarettes a day, as against 30 per day that he smoked previously.  He said that his attitude has changed, and that whereas previously he had a “laid back disposition” he was now nervous, short-tempered and his memory was not the best.  He said he had let himself go in some respects; for example he had previously been quite proud of his appearance, but had taken to wearing long hair and a beard (neither was apparent at the hearing, however).  He has been twice divorced and Mrs Glendora Magno, a friend of the couple, attests that he has been depressed and lonely since his fiancée’s departure (T p249).  Jodie Joans RN stated in October 2002 that the separation had caused Mr Taylor to suffer from insomnia and emotional distress (T p250), and his mother Mrs Mary Taylor refers to the unhappiness and disappointment he had felt as a result of his uncertainty about the future (Exhibit A3). 

51.     He saw a clinical psychologist, Dr Rosalyn Griffiths, on one occasion.  In her report dated 13 April 2004 (Exhibit A5), she says he displays characteristics consistent with symptoms of moderate to severe depression.  She confirms he had increased smoking and notes “a previous history of heavy drinking which has been controlled for some years”.  He told her that if his fiancée does not come to Australia he will “become even more introverted”.  She concludes that “the current separation of Mr Taylor and his fiancée is impacting on his emotional wellbeing”, but he is not suffering from any physical symptoms.  She did not recommend any particular treatment, and he has not sought any, preferring to rely, as he said more than once, “on friends and family”.  He added that there are doctors and nurses at Macquarie Hospital (a psychiatric hospital) where he works and that “If I have harsh problems I have people there I can talk to”. 

52.     In a separate statement from the witness box after the conclusion of his examination-in-chief, Mr Taylor said that he should be able to marry anyone, and that Ms Guevarra is not a terrorist or any kind of threat to Australia, she has simply made mistakes.  The decision under review, he said, resulted from the fact that some officials were “on a power trip” and that it made him ashamed to be an Australian.  He wanted a fair go for Ms Guevarra, who should be allowed to come to Australia because she has been punished enough. 

Application of the Law and Findings of Fact

53. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Ms Guevarra passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court 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 with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

54. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Ms Guevarra does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

55. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

56.     Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

57. At the hearing Mr Colborne conceded that Ms Guevarra’s numerous contraventions of migration law were enough to support a finding that she failed the character test, but argued that this should be balanced against the evidence of good character referred to above and the effect of the separation on Mr Taylor. Paying due regard to the evidence of good character, which I accept, I must nevertheless find that Ms Guevarra fails the character test. On many occasions she supplied false information in connection with her various visa applications, which is an offence under s 234 of the Migration Act, the penalty for which has recently been increased from two years to ten years imprisonment. She worked unlawfully in Australia, which is also an offence, and the evidence strongly suggests that she also intended to do so from the time of her arrival in Australia in 1997 on a visitor visa that did not permit her to work. She also overstayed one of her visas by 39 days (or according to Mr Colborne’s calculations seven days), but given that the overstay occurred at the time when she was caring for her husband John Bollard during his terminal sickness, there are extenuating circumstances for that particular transgression. Her conduct as a whole reveals a consistent practice of migration abuse that has continued over a period of years, and although she apologised to the tribunal, she has never acknowledged the seriousness of her misconduct. Indeed, her evasive and prevaricating evidence at the hearing continues her pre-existing pattern of behaviour.

58. Having decided that Ms Guevarra does not pass the character test by reason of her misconduct and abuse of Australia’s migration system, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Ms Guevarra. In exercising this discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

59.     Paragraph 2.3 sets out the primary considerations:

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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

60. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

61.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”. 

Protection of the Australian Community

62. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. For the reasons given above, I find that the visa applicant’s migration law contraventions are very serious, especially when viewed cumulatively.

63.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community. 

64.     The respondent contends that there is particular cause for concern with migration fraud originating in a minority of the Philippines community.  There exists a large body of case law (eg Caruso v Department of Immigration and Multicultural Affairs, DP Blow, 30 June 1998, Decision No 13037, unreported; Medyanto v Minister for Immigration and Multicultural Affairs, DP Chappell, 28 November 1997, Decision No 12453, unreported), which describes the fraudulent practices by some Filipinos in their attempts to unlawfully enter and remain in Australia.  As was noted above, Ms Guevarra herself, in one of her interviews, admitted the prevalence of such behaviour.  The respondent argues that there is a need to discourage others in similar situations from entering and attempting to remain in Australia by circumventing the Commonwealth’s migration laws.  I accept that considerations of general deterrence weigh against the grant of a visa in this case.

65.     The possibility that such conduct may be repeated cannot be excluded.  While the grant of a visa would reduce the incentive for further contraventions of one particular type, the visa applicant’s record of misleading and deceptive conduct is so long-standing and consistent as to raise the real possibility that it would reappear in other dealings she might have with commonwealth or state governments. 

Expectations of the Australian Community

66.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

67.     In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it.  That expectation weighs against the grant of a visa to the visa applicant, who has engaged in large-scale abuse of the migration system.

The Best Interests of the Child

68.     The third primary consideration, the best interests of the child, is not relevant to this matter as both the children of Ms Guevarra and Mr Taylor are all of adult age.

Other Considerations

69.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.  In this case, a refusal to grant a visa to Ms Guevarra would not disrupt her family, all of whom reside in the Philippines.  Mr Taylor would be separated from his family if he were to move to the Philippines, as they all reside in Australia.  The parties met in 1999 and lived together for only two months in Australia before Ms Guevarra returned to the Philippines.  At the time they met, both parties were still married to their respective second spouses, John Bollard being terminally sick with cancer of the pancreas when Ms Guevarra commenced her relationship with Mr Taylor.

70.     The relationship appears to be genuine and the separation has given Mr Taylor emotional distress, loneliness and episodes of insomnia.  He is now smoking 60 cigarettes a day as against 30 previously, although that might be regarded as a self-inflicted injury.  Dr Rosalyn Griffiths describes his condition as consistent with moderate to severe depression, but notes that he has does not display any physical symptoms and she does not recommend any particular treatment.  He has not himself sought any such treatment, preferring instead to rely “on friends and family”.  Continuing separation will, he believes, result in him becoming “even more introverted”.  He has considered the possibility of living in the Philippines, but views it as impracticable because of the difficulty he would have in finding suitable employment, and because he does not wish to be separated from his family in Australia.  He does, however, use his annual leave to visit Ms Guevarra in the Philippines and could presumably continue to do so. 

71.     There is no doubt that Mr Taylor will suffer emotional hardship if a visa is not granted and any tribunal would wish to avoid that.  But he was aware from the start of their acquaintance that she lacked the necessary approvals to live in Australia, and shortly before or shortly after John Bollard’s death in February 2001 he learned specifically of the protection visa episode and the overstay.  He considers that Ms Guevarra has not been fairly treated and that those who decided the visa refusal were on a “power trip” that made him ashamed to be Australian.  Yet there are serious reasons for upholding the Commonwealth’s migration laws, which benefit all Australians.  Some of those reasons have been given above.  In my view the other considerations do not outweigh Ms Guevarra’s serious and sustained record of migration contraventions and the consequences it has for considerations of community protection and expectations. 

72.     The decision under review should be affirmed.

I certify that the preceding 72 paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  1 and 12 December 2004
Date of Decision  12 January 2005
Counsel for the Applicant  Mr C Colborne

Solicitor for the Applicant  Ms V Odtojan, Virginia Odtojan & Associates

Solicitor for the Respondent  Ms J Gleeson, Australian Government Solicitor’s office