Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs - [2002] AATA 1244

DECISION AND REASONS FOR DECISION [2002] AATA 1244

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1818

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BRUCE HENRY TREMLETT
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

Tribunal The Hon RNJ Purvis QC, Deputy President

Date4 December 2002
PlaceSydney

Decision The decision under review is affirmed.

[SGD] The Hon RNJ Purvis QC
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – character test – past and present general conduct – fraudulent protection visa application and associated review – fabricated claims as refugee – overstaying visa by three years – working unlawfully and accessing Medicare entitlements – marriage to Review Applicant whilst unlawfully in Australia - maintaining falsity during interview process for spouse visa – claims that fraudulent protection visa application advocated by migration agent no excuse for conduct – Visa Applicant highly educated and aware of nature of the protection visa application and fabricated claims - high risk of recidivism - hardship to husband – level and duration of fraudulent behaviour not outweighed by hardship to husband - refusal to exercise discretion in favour of Visa Applicant – refusal seen to have general deterrent value to the community

Migration Act 1958 sections 234(1), 499, 501

Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

4 December 2002 The Hon RNJ Purvis QC, Deputy President

APPLICATION

This is an application made by Bruce Henry Tremlett (the Review Applicant) under date the 23 November 2001 seeking review by the Tribunal of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) under date the 27 October 2001. By such decision the Respondent refused to grant to Ms Nacita Tremlett (the Visa Applicant) a Combined Class UF Subclass 309 Spouse (Provisional) and Class BC Subclass 100 Spouse (Migrant) Visa, application for the same having been made by her on the 28 March 2001.
In the reasons given by the Respondent for refusing the visa application it was inter alia stated (T5, pp 10, 11 & 14):
"Assessment – "Past" General Conduct:
·     I have taken into account the following matters in assessing the past general conduct of the applicant:
·     The applicant applied for a protection visa using fabricated claims, knowing that she was not a "refugee" and for reasons other than a genuine need to seek Australia's protection;
·     The applicant applied for review with the Refugee Review Tribunal using fabricated claims, also knowing she was not a "refugee" and for reasons other than a genuine need to seek Australia's protection;
·     The applicant overstayed her visa by more than three years and worked unlawfully during the time she was an unlawful non-citizen;
·     The applicant did not attempt to clarify her status with the authorities in Australia during the approximately five years she was there, despite being well educated and having ample opportunity to do so;
·     The applicant did not divulge her fraudulent protection visa application and review application on her immigration status to the sponsor until he queried her status in 2001.
Assessment – "Present" General Conduct:
·     I have taken into account the following matters in assessing the present general conduct of the applicant:
·     The applicant did not express remorse for her actions at interview;
·     The applicant appeared not to grasp the gravity of her actions in relation to the Australian community;
·     The applicant stated she would not have provided false information to the government in her own country;
·     The applicant provided false and misleading information in her first interview in May 2001, when her responses are compared to those in her interview on 18 September 2001;
·     In her written response at folio 79, the applicant continues to be unable to accept responsibility for her actions, her responses confirming my findings that in the circumstances, she knew the nature of her applications in Australia but continued to allow the agent to pursue them for her.
Assessment – Summary:
I find that the applicant, by providing false and misleading information in her protection visa application and review and by overstaying her visa, was successful in her attempt to extend her stay in Australia and to be able to work and access Medicare entitlements. I find that the applicant sought and gained benefits and entitlement under Australia's immigration laws that she otherwise would not be entitled to.
I find that the applicant was not truthful in her dealings with the Department with respect to her stay in Australia and her application for a protection visa and associated review, nor by overstaying. I have taken into account that significant resources were deployed to resolve the applicant's status in Australia. I find that the applicant's general conduct demonstrates a blatant disregard for Australia's immigration laws and that she was not and is not law abiding nor of good moral character.
Finding in Relation to the "Character Test":
Having regard to the applicant's past and present general conduct in Australia and based on the evidence before me, I find that she is not of good character in relation to that past and present general conduct and such she fails to satisfy me that she passes the character test.
…
EXERCISE OF DISCRETION
Taking into account all of the circumstances, I find that the level and duration of the fraudulent behaviour is not outweighed by the existence of the relationship with the sponsor in this case. The applicant has for a lengthy period consistently dealt untruthfully with the Department in a system that requires, and in fact depends, on a person to be open and honest so that a proper assessment can be made and so that unlawful non-citizens and unlawful workers do not adversely impact on the rights of the Australian community. I do not elect to exercise my discretion in this case.
…"
The Review Applicant maintains by his application that his "wife's character is good, and the discretion should exercised in her favour in any event" (T3 p5).
THE ISSUES
The issues for determination in this application are:
·Whether the Tribunal is satisfied that the Visa Applicant passes the character test provided for by section 501(6)(c)(ii) of the Migration Act 1958 ("the Act");
·If the Visa Applicant does not pass the character test, whether or not the available discretion should be exercised in her favour.
At the conclusion of the hearing and in his submissions the representative of the Review Applicant accepted that the Visa Applicant "failed the character test". It will be relevant however to consider the facts that lay behind the section 501(1) determination.
THE HEARING
At the hearing of this application the Review Applicant was represented by Mr George Lombard of George Lombard Consultancy Limited Migration Agents, the Respondent by Ms Hanstein and Mr Cureton of Messrs Blake Dawson Waldron Solicitors.
The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T46 and supplementary documents as S1 to S7. Written material tendered by the Review Applicant was also admitted into evidence and marked accordingly namely.
Exhibit          Description Date
A        Report of Dr Christopher Stevens 5 March 2002
B        Witness statement of Bruce Tremlett       Undated
C        Witness statement of Mrs Nacita Tremlett          Undated
D        Resume of Dr Christopher Stevens         18 March 2002
E        Statutory Declaration of Nimfa Manaog   31 May 2002
F         Information from internet re: T. Gonzales           -
G        Travel Advice for Philippines – Australian Department of Foreign Affairs and Trade         21 October 2002

The Review Applicant, the Visa Applicant, Dr Christopher Stevens and Ms Nimfa Manaog, a sister of the Visa Applicant gave evidence upon which they were each cross-examined.
RELEVANT LEGISLATION AND DISCRETION
Section 234(1) of the Act provides that:
"(1) A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both."

It is noted that the Act was amended effective from the 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was only two years. The amendment underscores the perceived seriousness of the offence.
By section 501(1) of the Act, the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.
"501 Refusal or cancellation of visa on character grounds
…
(6)      For the purposes of this section, a person does not pass the character test if:
…
(c)      having regard to either or both of the following:
(i)       the person's past and present criminal conduct;
(ii)      the person's past and present general conduct;
the person is not of good character; or
…"
It is noted by the Tribunal that the words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". The enduring moral qualities of a person necessitate an objective assessment being made and ought to be established as a matter of fact (Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432). In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324, it was said:
"The concept of 'good character' in s 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."
As more particularly relevant to the present application, the Tribunal is mindful of statements made by it in reasons for decisions given in other applications and as was clearly stated in Re Lachmaiya and Department of Immigration and Ethnic Affairs back in 1994 (19 AAR 148 at 155-156):
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently ... over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that [the person] is not a person of good repute or good character. Australia can have no confidence that [an applicant] would not again transgress in matters where truth and good faith could be deceptively withheld".
A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued by the Minister pursuant to provisions of section 499(1)(a) of the Act. The relevant Direction made under section 499 of the Act is Direction 21 signed by the Minister under date 23 August 2001. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
Direction 21 as here relevant provides:
"PART 1 - APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.
1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test …
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501(1) provides the authority to refuse to grant a visa …
1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under section 501(6).
…
Para 501(6)(c) – Not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that the non-citizen is 'not of good character' on the account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct …

Sub-paragraph 501(6)(c)(ii) – past and present general conduct
1.9 In considering whether a non-citizen is not of good character against sub-paragraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts to the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test.
…
(b) whether the non-citizen has in connection with any application for the grant for a visa or any kind of Government benefit, provided a bogus document made a false or misleading statement; …
PART 2 – EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations where exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations…Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
PRIMARY CONSIDERATIONS
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and the members of the community;
(b) the expectations of the Australian community;
(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.
Protection of the Australian community
…
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
a. The seriousness and nature of the conduct.
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) … providing certain false or misleading information about a marital, de facto or interdependency relationship;… or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism…
c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor 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 the visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australia laws while in Australia … Visa refusal or cancellation and removal of the non-citizen 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.
…
The best interests of the child
2.13 This consideration only applies if the child is or would be less that 18 years of age at the time when the decision in intended to come into effect.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of the 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 generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
…
(b) genuine marriage to or de facto or interdependent relationship with, an Australian citizen …
in assessing the compassionate claims of the Australian partner… decision- makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens)…"

CHRONOLOGY OF RELEVANT EVENTS
Date Event
20/05/1941    Visa Applicant born in the Philippines.
17/04/1992        ~ 20/03/1993 Visa Applicant first travels to Australia on a visitor visa.
17/04/1996    Visa Applicant travels to Australia on a visitor visa with authorised stay to 17 October 1996.
13/08/1996    Visa Applicant applied for a protection visa and was granted a bridging visa with permission to work.
09/01/1997    Protection visa application refused.
07/02/1997    Visa Applicant applied to the Refugee Review Tribunal.
           Visa Applicant and Review Applicant first meet.
25/06/1997    Refugee Review Tribunal affirmed decision to refuse protection visa.
28/07/1997    Visa Applicant's bridging visa terminated.

14/11/1999    Visa Applicant and Review Applicant married.
29/01/2001    Visa Applicant and Review Applicant approached the Respondent and Visa Applicant granted bridging visa while she makes arrangements to depart Australia.
18/02/2001    Visa Applicant departed Australia.
28/03/2001    Visa Applicant lodged an application for a spouse visa.
03/05/2001    Visa Applicant interviewed in Manila in connection with spouse visa application.
18/09/2001    Visa Applicant further interviewed in Manila in connection with spouse visa application.
27/10/2001    Spouse visa refused.
THE FACTUAL SITUATION

The Visa Applicant was born in the Philippines on the 20 May 1941 as one of seven children. She married in 1962, her husband died in 1979. Of her said marriage there were five children, one of whom is now deceased. Three of the four children are now married and living with their families in the Philippines. The Visa Applicant is living in a house owned by one of her daughters with the daughter's husband and their children. An unmarried daughter, "Lovely", a secondary Applicant for a visa, is also there residing. Of her siblings, two sisters and a brother with their families and the mother of the Visa Applicant live in Australia. These siblings are Australian citizens having lived here for from 16 years to 25 years.
The Visa Applicant is now retired. She obtained tertiary education that qualified her as a teacher in which profession she taught English as a second language for approximately 34 years. She first visited Australia with the sponsorship of her sister Ms Nimfa Manaog in 1992 and remained for about 11 months. In April 1996 she returned on a visa enabling her to remain legally in Australia up until October of that year. In fact she remained until February 2001.
Approximately four months after her arrival in Australia in 1996, the Visa Applicant expressed to her sister Ms Manaog a wish to stay in Australia. Ms Manaog suggested that the Visa Applicant apply for a "working visa" and satisfied that her sister could afford the fee of $1,500 suggested she consult an "immigration agent at Blacktown, a Mr Gonzales who was also a qualified solicitor". The Visa Applicant did so. Whilst the Visa Applicant now maintains that she was not aware of the nature of the documentation that was prepared in the office of Mr Gonzales, she was aware that the recitation of a purported factual situation contained in a protection visa application signed by her was false. She knew that it was wrong but says that the migration agent/solicitor, that is Mr Gonzales, placed before her a script and told her to write out the words in her own handwriting on the face of the visa application. The Visa Applicant says she accepted the advice of Mr Gonzales that the falsity was necessarily instrumental to her obtaining the visa that she sought, even though she knew that what was written was untrue. She says however "I did not ask the solicitor …I thought it might be the right thing…I was relying on the person who was handling the matter. I thought that person was able to defend me". She said she did not know she was applying for a "'refugee visa' … I did not consider myself to be a refugee".
In the protection visa application, the Visa Applicant wrote in her own hand (T8, pp 37, 38, 39, 40 and 41):
"Teresa Cervantes was like a daughter to me. While her mother was alive they could visit me. After her mother died, Teresa who was about 22 years of age continued to see me as she had no family left. She never knew her father because he had left them even before she was born. Teresa was a kind and gentle person. She was beautiful and very considerate. I always felt that whoever marries Teresa would be extremely lucky. Then I remember Teresa not visiting me for over three months. When she come back, she had with her a man named Rey. She introduced Rey to me her husband. But Teresa appeared different. There was sadness over her face. She was pale and acted very unnaturally. I immediately sensed that there was something wrong. After supper they left. We did not have the chance to speak alone. Five nights later Teresa came to see me. I remember that it was very late at night. She was all in tears and trembling. She said that Rey was a communist officer and that he had her abducted by his men. She said that she has been living like a prisoner for over three months now. Rey never let her out alone nor was she ever allowed to go anywhere without Rey's armed men. She said that she had escaped and needed my help. I felt terrible for Teresa. I was of course more than happy to help her. I immediately brought her to a friend's house in Pangasinan. I had her stay there until we could sort out of what to do. I was with her for about a week when I received a call from my son. He said that the communists have been to our house. They have been looking for Teresa and myself. The leader said he knew I took Teresa away because Teresa spoke only about me all the time. My son said they were almost shot him when he failed to disclose where we went. I have no regrets having helped Teresa. But circumstances have changed. Now I too am in danger. Teresa begged me to give her up so that my life would be spared. I could never agree to this. We then decided that it was best for us to leave the country. Teresa said she had a relative in Malaysia. She said she would go there. Meantime my son arranged for my departure to Australia because I have siblings there. These are the circumstances for my presence in Australia."
When asked, "What do you fear may happen to you if you go back to that country?" the Visa Applicant wrote, "I am afraid if I go back to the Philippines, the communists may find me and kill me". When asked, "Who do you think may harm/mistreat you if you go back?" she replied, "The communist organisation", and when further asked, "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" she replied, "Seeking the protection of the authorities in my country serves no purpose because no matter what I do the communists will get to me".
Her protection visa application was refused. She consulted Mr Gonzales. He advised an appeal to the Refugee Review Tribunal saying according to the Visa Applicant that she should leave all the papers to him, "I will handle everything". In her 7 February 1997 Refugee Review Tribunal application there appears in handwriting the following alleged reasons for the application (S1 pp 2 and 4):
"My application for refugee status in Australia received a negative result from the case officer Ms Jane Delaney because according to the case officer, there is no convention ground in my application. With respect I state that the case officer was not correct in making the findings because I rely on persecution based on political opinion. The fear I entertain arise primarily from the communist organisation in the Philippines. The communist party in the conduct of its affairs has for its main purpose the advancement of its political ideology and this is communism. An officer or member of the party acts on behalf of the party and not as a private individual. When a person is harmed or victimised by the communists, it is difficult to split hair and ask the motivation for harm for the particular victim. It is because an individual fears the communist party that he or she seeks the protection of another country. It is also because under this situation the duly constituted authorities are unable to provide the victims or intended victims adequate protection. This is constitutes persecution. The attempt of Ms Delaney to simplify the incident into a purely private concern is unfair. My assistance to the communists is a manifestation of my objection to their political ideology. My actions in helping Teresa is a political statement that I refuse to accept the political profile of the communist. While it is true that there is the element of personal relationship involved, it is not correct to isolate this fact. I request that the larger pictured be viewed in this application. This larger picture is my being sought after by communists. The situation would have been different if the party after me were an ordinary person. That Ms Delaney would be right. All I have to do is go to our country and my difficulty would be solved. But this is not the case. The communists after me seek me not as an ordinary person. They have the communist force behind them in reality therefore it is the fact that if I agreed with their cause then I would have no difficulty with them. I could seek remedy within their system. But I am not part of their system and this is the gist of my application. All I considered I hope I could have exhibited the convention ground of political opinion. And as I have met the other criteria, I ask that a decision be handed down by the tribunal positively considering my application. I thank you."
The Visa Applicant now says that she does not remember writing about a "convention ground" and that an allegation of persecution based on political opinion was "not my statement". She says she signed "blank sheets of papers". When asked why she trusted Mr Gonzales she said in her evidence words to the effect, "I thought he was the appropriate person to give us the visa. He was a solicitor. He knows the law in Australia. He was supposed to know. I regret having trusted him. If I had believed it would lead to these problems I would not have told the lies".
Even be it letters were sent to her care of her sister's address, being that supplied by her to the Refugee Review Tribunal, inviting her to give oral evidence, she declined so to do. It goes without saying that the Visa Applicant would not have been able to substantiate or corroborate her false representations.
The Refugee Review Tribunal affirmed the decision under review.
During the course of the above protection visa process and whilst as she put it "just having to wait" for Mr Gonzales to obtain the visa with the aid of her false representations, the Visa Applicant lived with the members of her family. Upon the expiration of a bridging visa granted to her whilst the appeal process was current and in July 1997 she became an unlawful non-citizen. Although not having a permit so to do, she engaged in employment at a bakery, a shop and elsewhere.
The Visa Applicant first met the Review Applicant whilst she was working at the bakery. He had been previously twice married, his first wife died in 1964 and the second marriage was terminated by a divorce in 1995. Of the second marriage there are three children, two of whom remained living with their father after the divorce. At the time of the above-mentioned first meeting according to the Visa Applicant "They were both quite lonely people". A relationship developed, the Review Applicant was introduced to and accepted by the Visa Applicant's family in Australia.
The Applicants were married in November 1999. Prior to the wedding no mention was made by the Visa Applicant to her prospective husband of her visa status and it was not until late 2000 or early 2001 that seemingly as the result of a casual comment by her husband about the subject of "bridging visas" and a television program that made mention of Mr Gonzales, that she commented upon her status. The Review Applicant says that he had not asked her whether she was legally in Australia, "Her sisters, brother and mother were here so I assumed she was entitled to be in this country". He heard "Of something about Gonzales from the TV and something about bridging visas".
The Review Applicant being concerned, said words the effect of there being a need to take "immediate action" and after consulting a relative working with the Department of Immigration and Multicultural Affairs in Canberra arranged for his wife and himself to see officers of the Respondent. The Visa Applicant departed Australia in the following month and when in the Philippines made the subject application.
When asked his reaction to his wife leaving Australia, the Review Applicant said "It turned my life upside down for a while. She was a bit upset but it had to be put right".
In her application for the grant of a spouse visa, the Visa Applicant answered a number of the questions incorrectly. They are as follows:
"Have you held or do you currently hold a bridging visa E? No
Have you, or any other person included in this application, ever: … been removed or deported from any country (including Australia)? No
left any country to avoid being removed or deported?         No
been excluded from or asked to leave any country (including Australia)?    No
Have you ever been given written permission by the Department of Immigration and Multicultural Affairs to work in Australia?      No"
(T19, pp 83, 90 and 91).
The Visa Applicant was interviewed in relation to her spouse visa application in Manila on the 3 May 2001 at which time she disclaimed lodging a Refugee Review Tribunal application and denied working whilst in Australia. Case notes taken of that interview recite:
"… At that interview, she did not mention her protection visa application until the interviewing officer raised the issue. She related her claims for protection and did not declare that they were untrue. She claimed to have not applied for review with the Refugee Review Tribunal. She also claimed not to have worked while she was in Australia.
…
When I ask her about her claims for applying PV-PA answer spontaneously: that she used to keep a godchild in her house who was being maltreated by the husband who was an NPA commander. This happened sometime in 1995. She said she was receiving death threats from the husband thru letter. I asked if she ever reported the incident to police authorities. PA said yes but when I told her I will request for police report, she said she did not report it formally, thus no police report can be provided. She decided to just leave the country. … Her solicitor lodged her PV appln in A/a. She said she was invited to attend an interview by DIMA but did not attend the i/v as she went somewhere else. Claimed not to have lodged review with RRT…
PA claimed not to have worked in A/a. She was supported by her siblings whilst in A/a."

(T46, pp169, 170 and 172).

The Visa Applicant says in her defence that she "got confused" during the interview and the questioning, did not tell the officer of the Respondent "everything" and "I lost the resolve to do so".
In a later interview on the 18 September 2001, the Visa Applicant acknowledged the falsity of representations made in the course of her application for the protection visa. As noted by the interviewing officer (T46, p170):
"… She stated that none of the contents of her claims that she copied were true, that she knew it was not the right thing to do, but that she did so to stay in Australia and to be able to work. She states that she paid the agent a total AUD$2000 for his services. The applicant stated that she would not have provided false information to a government department in the Philippines.
… The applicant stated at interview that she never considered herself a refugee. The agent offered to lodge an appeal to the Refugee Review Tribunal on her behalf, which she agreed to because she wanted to stay in Australia to work …
According to the applicant, she attempted numerous times to contact the migration agent to find out the outcome of her appeal to the RRT, but either he was not in or she could not contact him. She did not attempt to contact the department or the Tribunal herself to ascertain the outcome over the next three years, and as a result she became unlawful in Australia when her bridging visa ceased. The applicant stated that she did not have the "courage" to approach the department, but that she continued to work to earn money, and seeking information about her immigration status was 'lost on [her] mind' as she became busy."
The Review Applicant travelled to the Philippines and stayed there with his wife from the 21 July 2001 to the 16 September 2001. He maintains weekly telephone contact with her. He says that if he should move to live in the Philippines he "would be adversely affected financially" and does not feel that he could live there.
NOT OF GOOD CHARACTER
The Tribunal having considered the past and present conduct of the Visa Applicant outlined above and as particularised in the reasons for decision of the Respondent is satisfied regardless of the admission made by her representative that the Visa Applicant is within the meaning of section 501 of the Act not of good character.
THE MIGRATION AGENT/SOLICITOR
The Visa Applicant is a well educated lady and had been a school teacher in the Philippines specialising in English for well neigh 34 years. Her details of tertiary education as they appear on her protection visa application (C36) make mention of her attending the Manila Central University, University of Eastern Philippines and Christ the King College.
Even be it the late Mr Gonzales advised her to make and give false representations, she knew that what she was doing was wrong both as to her initial application and her application to the Refugee Review Tribunal. She knew that her ability to initially extend her stay in Australia was only by reason of her applications so based on lies. She met the Review Applicant and was able to marry him as a consequence of her stay in Australia under false pretences.
The Visa Applicant can not avoid her primary responsibility for the false representations by reason of the unlawful conduct of Mr Gonzales and activity, not isolated, in respect of which on the basis of evidence before the Tribunal, he was under investigation by the Migration Agents Registration Authority.
The Visa Applicant was prepared to use the procedure advocated by Mr Gonzales in order to obtain her own ends.
THE REVIEW APPLICANT
The Review Applicant is now 65 years of age, having retired from his occupation as a truck driver in 1980. He has been in receipt of a pension since retiring. He is in regular contact with his children and one grand daughter.
Dr Stevens, a psychologist, in his report of 5 March 2002 prepared at the request of the representative of the Review Applicant after interviewing the Review Applicant face to face and the Visa Applicant by telephone stated:
"Considering the advanced years of Mr and Mrs Tremlett, the unlikelihood of harm to the community and the difficulties and tragic circumstances in both their personal lives, there is a high probability that their marriage represents something of a 'last chance' for happiness within an intimate relationship for both Bruce and Nacita Tremlett. Bruce at this stage of life and health is not likely to adjust well to life in the Philippines. I think there are strong grounds here for compassion. Neither of these people appeared to me to be deceitful or evasive. On the contrary, they were frank and direct in their statements. I am confident their relationship is genuine as is their suffering in being separated. There also appears to be grounds for considering the needs of Nacita Tremlett's family in Australia. I therefore am supportive of Bruce Tremlett's appeal to have Nacita Tremlett's Spouse Visa application approved."
Results emanating from formal tests applied by him to the Review Applicant, led Dr Stevens to conclude:
"… His stress score was elevated as was the depression subscale measuring 'affective' depression, suggesting higher than normal levels of sadness and loss of normal pleasures. There was also an elevated 'Borderline-Identity' score, which is suggestive of a person struggling with uncertainty in major life issues and a loss of a sense of purpose.
These results were consistent with, and supportive of, hypotheses generated by the clinical interview. His Positive Impression score is typical of an Australian male of an older generation playing down his suffering and presenting a brave face. As such, his scores would tend to be an under-estimation of his actual levels of stress, sadness and uncertainty regarding his future" (Exhibit A).

It was submitted by Mr Lombard on behalf of the Review Applicant that "the continuing hardship being suffered by the Applicant husband is severe and ongoing" and that this should be "a compelling factor in the overall exercise of the Tribunal's discretion".
The Tribunal in mindful of the position of the Review Applicant. It is a significant aspect to be taken into account in the totality of considerations. The adverse factors in this matter are not attributable to any conduct or behaviour on his part. There is no issue as to the genuineness of his marriage but the marriage did take place in the circumstances of the improper conduct and behaviour of the Visa Applicant.
TERRORIST ACTIVITY IN PHILIPPINES
There was evidence tendered before the Tribunal of civil and military disturbance in the Philippines and of threats against Australians and Australian interests. A warning has been given accordingly. The island of Mindanao and the Zamboanga area in particular have been identified.
It was submitted that the above constitutes a risk to the Review Applicant in the event of his travelling to the Philippines or deciding there to reside. However, the risk is minimised on account of the evidence given by him that he is unlikely to so travel and live with the Visa Applicant in that country. It is however a factor to be taken into consideration together with other relevant matters.
THE EXERCISE OF THE AVAILABLE DISCRETION
The Seriousness and Nature of the Conduct
In the reasons for the decision the subject of review by the Tribunal it was stated (T5, p12):
"The applicant has admitted making false and misleading statements to the Department in connection with her prolonged stay in Australia and overstaying her visa and working … She has committed these actions by conspiring with another, namely the migration agent. These are offences under the Migration Act 1958 and Commonwealth Crimes Act.
The applicant wilfully mislead the Department in her visa applications, and the Refugee Review Tribunal (RRT) through all stages of her applications for a protection visa. At no stage during her approximately five-year stay in Australia did she attempt to clarify her situation with the Department or the RRT regarding the fraudulent claims in the applications or to check whether her bridging visa had ceased."
It is submitted on behalf of the Respondent that the making of false or misleading statements in connection with entry or stay in Australia are examples of offences which are considered by the Government to be very serious. The Visa Applicant wrote the representations onto the form herself and was aware that she was providing fabricated claims and making false statements. The application to the Refugee Review Tribunal was made with full awareness on her part as to the nature of her application and the asserted basis for it.
On behalf of the Review Applicant, Mr Lombard submitted that the Visa Applicant's "past bad conduct" was not in the same category as "the most serious of Australian offences". He made mention of the penalty that was provided for by the then legislation, and that there had not been a prosecution in the present matter. In the latter regard it might be noted that it was not until the admission was made during the second interview then in the Philippines that the seriousness of the Visa Applicant's conduct was fully appreciated.
The Tribunal agrees with the abovementioned observations made by the Respondent in the delegate's reasons for decision. The making of false and misleading statements and maintaining the same over a relatively long period of time reflects adversely on the Visa Applicant and is indicative of the very serious nature of her conduct.
Repetition of Conduct and Recidivism
In its reasons for decision the Respondent stated (T5, p12):
"The applicant perpetuated the … dishonest actions over a period of about five years, so they were not isolated incidents. Based on this and in the absence of any evidence from the applicant to the contrary, I find that there is a likelihood that she could resort to fraudulent behaviour in the future in order to achieve her desired objectives if not able to do so through lawful means".
The Review Applicant maintains that there is a negligible risk to the Australian community of the Visa Applicant committing any crime in the future. Reliance is placed upon the opinion expressed by Dr Stevens in that she "poses no credible recidivist threat to the Australian Community".
The Respondent on the other hand maintains that the Visa Applicant's past conduct indicates a pattern of disregard for the law and that there is a risk that she will again engage in conduct demonstrating such a disregard.
As is mentioned later in these reasons, the Tribunal is not satisfied that the Visa Applicant may not again seek to obtain a desired end by means of a disregard for or violation of the law. The fact that she did not communicate with her husband or her sister the position in which she had placed herself and that neither of the latter persons was aware of her lack of truthfulness and the stratagem that she had adopted until she made her confession at the time of the second interview does tend to indicate an inability on her part to appreciate the seriousness of the conduct in which she had engaged.
GENERAL DETERRENCE
The Respondent in its reasons for arriving at the decision under review was of the opinion that "The refusal of her migrant visa will act as a general deterrent to those segments of the community who seek to engage in similar schemes". The Respondent in support of its submissions before the Tribunal contends that refusal of the visa will act as a deterrent to others who may contemplate providing false and misleading information in connection with visa applications or contemplate remaining in Australia unlawfully. More so it was submitted, the refusal would act as a deterrent to those in the community who might seek to obtain benefits that they are not entitled to through illegal means.
On behalf of the Review Applicant, Mr Lombard contended that there would be minimal general deterrent effect if the visa be refused. The Visa Applicant and her husband it was submitted have suffered by reason of her "past bad conduct".
The Tribunal notes that it was the Visa Applicant's sister who was the one who suggested she approach Mr Gonzales in the first place. The distress experienced by the sister on becoming aware of the Visa Applicant's conduct clearly illustrates that the refusal of a visa could have a deterrent effect upon other people who might seek to engage in similar deceptive conduct. The Tribunal does not accept the submissions made on behalf of the Review Applicant referrable to deterrence.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Respondent maintains that in pursuing her application for a protection visa up to and including the application for review by the Refugee Review Tribunal and by overstaying her visa that the Applicant has shown a disregard for the laws of Australia and has breached the trust of the Australian Community. It is submitted on behalf of the Respondent that the Australian Community would expect a non-citizen who engaged in blatant breaches of Australian's immigration laws to not be granted a visa.
Mr Lombard submitted on behalf of the Review Applicant that having now admitted "the true story" to migration officials and having done the "right thing" by leaving Australia and applying for her spouse visa overseas that the Australian Community would not expect a visa to be refused. Further, it was submitted the community would accept that the Visa Applicant had been "punished sufficiently for her past bad conduct, so as to permit her to rejoin her husband and live in Australia". The Tribunal should, it is said, "look at the case sympathetically".
The Tribunal has no doubt that the Australian Community would expect it in the circumstances of this case and in the absence of the factors affecting the Review Applicant to look unfavourably upon the grant of a visa.
BEST INTERESTS OF CHILDREN
There are not any children who are relevant to this application.
OTHER CONSIDERATIONS
There is no issue as to the genuineness of the relationship between the Applicants. However, the Tribunal is mindful of the fact that the Visa Applicant did not divulge her immigration status to her husband and indeed did not reveal the nature of her false and deceitful representations to her husband.
The Visa Applicant has lived for most of her life in the Philippines and her children and grandchildren are there resident. The secondary Visa Applicant is also resident in the Philippines. The relationship between the Review and Visa Applicants commenced and developed whilst the Visa Applicant was unlawfully in Australia and would not have come about if the Visa Applicant had left on the expiry of her visitor visa.
As earlier detailed, the Visa Applicant has two sisters and a brother with their families living in Australia where her mother, a widow, now 84 years of age and not in good health also lives. She herself lives with her two daughters, the husband of one and their small children in Mindanao in the south of the Philippines. Her other children, sons, live with their families in other parts of that country. They are according to her in a "good financial" position.
There is no indication on the part of the relatives of their experiencing any adverse consequence beyond the absence of the Visa Applicant in Australia upon the visa not been granted.
DECISION
The Tribunal has giving consideration to each of the above factors attributing weight to them according to their significance in the totality of the factual situation.
The Respondent and its officers have the responsibility of assessing numerous applications for visas from persons seeking to enter Australia, the applicants seeking to remain for varying periods of time. It is an onerous task and to a measurable extent dependent upon the honesty of an applicant in answering questions and making representations. Not all of these aspects can be exhaustibly investigated and a degree of trust is maintained in the truthfulness of an applicant. If this were not to be so, the resources required to be applied to the migration process would be far beyond those presently available. More so applicants who are honest, trustworthy and forthcoming would be hindered and possibly prejudiced by the then intrusiveness of an investigation.
Where it is shown as in this matter that an Applicant perpetrated a litany of untruths upon which she relied for a relatively lengthy period of time only confessing to their inaccuracy at a second interview with an officer of the Respondent in Manila, a situation arises leading inevitably to such a lack of trust or confidence in the Applicant.
It can be no defence to say that the advice of an agent or lawyer was only being followed when the Applicant knew of the falsity of the representations, knew that what she was doing was wrong and knew that she was using the untruths to obtain a benefit that would not otherwise be available to her. The conduct of the agent/lawyer may have been reprehensible but without the cooperation and participation of the Visa Applicant as an accessory, he would not be or have been able to prefect the stratagem of enabling persons to remain in Australia without proper cause for lengthy periods of time earning money in the meantime, this in defiance of the provisions of the Act.
But the involvement of the Visa Applicant with the agent/lawyer in the nefarious scheme was consequent upon her being introduced to the agent/lawyer by a relative and/or a friend. Whether his modus operandi was known to the relative/friend is not apparent. However, the refusal of a visa in the circumstances of this matter will surely send a warning to those minded to act in a similar fashion.
Whilst the Visa Applicant if granted a visa is unlikely to commit acts of a like wrongful nature, she has shown a propensity to use means which she knew were wrong in order to gain her own end. She maintained the subterfuge. She did not tell her husband of her status until he questioned her and even then she referred to a bridging visa which was not current. She did not reveal her untruths or her status to her sister, Ms Manaog who only came to know about the falsities when shown the written material by Mr Lombard. In somewhat of an understatement, Ms Manaog said, "I am disappointed about it. All other members of the family did the right thing."
The Tribunal cannot be sure that the Visa Applicant would not in the future act contrary to law in order to obtain a personal benefit.
The Australian Community diverse as it might be, would not expect the Respondent to admit into its membership a person who so deliberately, in concert, flouted the migration requirements and who might avail herself of a similar perceived stratagem in the future.
The Tribunal has not come to its decision in this matter without taking into consideration not only the position in which the Review Applicant, the husband of the Visa Applicant finds himself, comforting as may be the presence in Australia of his children and grand daughter, but also that of the relatives of the Visa Applicant living in Australia. However, it is only the unmarried sister who gave evidence and she expressed her disappointment in the Visa Applicant. No doubt the Visa Applicant's mother would be concerned at the absence of the daughter but she came to Australia and lived in this country for some years without the Visa Applicant who on the evidence only sought to obtain a visa enabling her to visit her mother on two occasions.
For the above reasons, the Tribunal would not be minded to grant a relevant visa to the Applicant. The decision under review is affirmed.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis QC, Deputy President
Signed: H Sim         .....................................................................................
  Associate
Dates of Hearing  7 June 2002, 11 July 2002, 12 September 2002
  and 25 October 2002
Date of Decision  4 December 2002
Solicitor for the Applicant         Mr George Lombard, George Lombard
  Consultancy Limited Migration Agents
Solicitors for the Respondent Mr Cureton and Ms Hanstein, Blake Dawson
  Waldron Solicitors