Tuipulotu and Minister for Immigration and Multicultural Affairs

[2001] AATA 451

DECISION AND REASONS FOR DECISION [2001] AATA 451

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1897

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      PITA TUIPULOTU
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       The Hon. C R Wright Q.C. (Deputy President)

Date28 May 2001

PlaceSydney

Decision      The decision under review is affirmed. 
  [Sgd Hon CR Wright QC]
  Deputy President
CATCHWORDS
Immigration – spouse visa – refusal – whether person of good character – false and misleading statements – worked illegally in Australia – decision affirmed.
Migration Act 1958 – s.501

REASONS FOR DECISION

28 May 2001           The Hon. C R Wright Q.C. (Deputy President)             

1. The review applicant, Pita Tuipulotu, married Maria Fe Cruz the visa applicant at Bulacan in the Philippines on 28 February 2000.   The visa applicant applied for a Class UF Subclass 309 spouse (provisional) visa and a Class BC Subclass 100 spouse (migrant) visa on 5 October 2000.

2. Mr. Tuipulotu is an Australian citizen and has been employed with the Parramatta Linen Service since 12 November 1999. He continues to reside in Australia. His wife's visa applications were refused on 8 November 2000 by the Minister's delegate, Geoffrey Heath, on the grounds that she did not pass the character test prescribed by s.501 of Migration Act 1958 ("the Act") and that she was not a person in respect of whom a discretion should be exercised having regard (inter alia) to criteria specified in Part II of the Minister's Direction under s.499 (Direction No. 17).    As is usual in such cases, the Minister's delegate gave detailed written reasons for his decision.   The applicant has now lodged an application to review that decision.   That application was heard before me on 16 May 2001 at Sydney.    

3. The applicant appeared in person, assisted by his second cousin, Ms Maklita Maka.   The respondent Minister was represented by Mr. Zac Chami instructed by Messrs Clayton Utz, Solicitors.   Both the applicant and Ms Maka gave oral evidence at the hearing.   The applicant also produced correspondence and references in respect of his wife's character which I have read and considered.   Affidavit evidence on behalf of the respondent was given by Mr Peter Castrission, a senior migration officer stationed in Manila.   Mr. Castrission was not required for cross-examination,   the applicant making it plain that his evidence in the affidavit was not challenged.

4. The visa applicant's relevant history is as follows:

(a)On 15 December 1996 she entered Australia on Subclass 676 Visitor Visa which was valid for a period of 3 months.

(b)On 9 January 1997 she applied for a Protection Visa in which she made claims that she was involved in the Philippines with a human rights organisation which had been raided by and mistreated by members of the Philippines military.  

(c)Her application for a Protection Visa was refused on 14 May 1997.  

(d)She then returned to her solicitor who had helped her with the original application and with his assistance made an application to the Refugee Review Tribunal ("the RRT") on 30 May 1997.

(e)In a signed statement lodged with application to the RRT she repeated her story of mistreatment by the Philippines military and embellished it with allegations that she had been threatened with kidnapping and rape.

(f)On or about 28 August 1997 the visa applicant and the applicant met at a birthday party.

(g)On 5 March 1998 the visa applicant attended before the RRT and gave sworn evidence during which she maintained and further embellished her story about the human rights organisation and the mistreatment and threats made to her.   The RRT rejected her claim for refugee status, on the basis that she did not have a well founded fear of persecution by the authorities.

(h)The applicant then consulted her solicitor once again and with his assistance made an application for ministerial intervention pursuant to s.417 of the Act. In it she repeated her story of abuse and threats. The application received the Minister's personal attention, but he declined to intervene on 30 June 1998.

1. In August of the same year the applicant and the visa applicant commenced living together in a de facto relationship at Factory Street, North Parramatta.

(j)On 15 November 1998 the visa applicant left Australia and returned to the Philippines.   Early the following year on 5 February 2000 the applicant travelled to Philippines intent upon asking the visa applicant to marry him.  He did so, she accepted, and they were married on  18 February at Bulacan.   The applicant returned to Australia about March 2000 and the visa applicant continued living at Bulacan with her father and mother.

(k)On 6 October 2000 the visa applicant lodged her present applications for visas.   Five days later on 11 October she was interviewed in Manila by a departmental delegate, Mr. Peter Castrission.   She admitted to him that she had told falsehoods in her original applications and subsequent proceedings and as a result he expressed doubt that she would be able to pass the character test for the grant of a visa.   He invited her to make written submissions with respect to these matters.

(l)On 24 October 2000 the visa applicant responded to this invitation by writing a letter to Mr. Castrission in which she attributed the false and misleading statements to her then Migration Agent and Solicitor. The matter was then referred to the Minister's delegate Mr. Heath who refused to grant the visas for which application had been made. The Minister's delegate found that she was not of good character based upon her past and general conduct (see S.501(6) paragraph (c)(ii) of the Act) in that she had made false and misleading statements in connection with her previous visas applications and review proceedings.

1. That such a determination may be made on the basis of such conduct not withstanding the absence of any other proved reprehensible or criminal behaviour is beyond dispute.   In making his assessment the Minister's delegate said:

   "9.  I have taken the following factors into account in assessing the past general conduct of the applicant:

• She has worked illegally in Australia after being refused permission to work.

• She has lodged a protection visa application with the department, using fabricated claims, not for the purpose of any genuine need to seek Australia's protection but to be able to prolong her stay in Australia for other reaons.

• She pursued the protection visa application from primary stage through to review and to a request to the Minister intervention.

• She gave false evidence at the RRT hearing.

• Despite having ample opportunity to do so, she failed to advise the department that she had lodged an application and associated reviews on the basis of false and misleading claims.

  10. I have taken into account the following considerations in assessing the present general conduct of the applicant:

• Her response to the character issues at folio 22 is inconsistent with her statements at interview several days before, and seeks to divert responsibility for her actions to the migration agent.

• The applicant has apologised for her actions in relation to the Australian community in her written and verbal responses.

  11. I find that the applicant's course of conduct over almost four years in relation to the department indicates a disregard for the laws of Australia and a propensity to be dishonest in her dealings with the department and the Australian community.   The duration of this conduct indicates that it was not an isolated incident.   Given her general conduct over this lengthy period, I question her commitment to obeying the laws of Australia should she be granted a visa.

  12.      Having regard to the applicant's past and present general conduct and based on the evidence before me I find that she is not of good character in relation to her past and present general conduct and as such fails to satisfy me that she passes the character test."

1. Having reviewed the evidentiary material before me, including the 'T' documents and having considered Mr. Tuipulotu's submissions, I am left in doubt that the Minister's delegate's assessment of the facts was correct and his finding that the visa applicant is not of good character in the relevant sense is beyond reproach.

2. It has been recognised in several decisions of the Federal Court and the AAT that the deliberate making of false statements by persons seeking to enter this country is conduct of considerable gravity which completely justifies a finding that the character test has been failed. Here was calculated dishonesty on the part of the visa applicant which was repeated and maintained over a substantial period of time. Whilst the precise nature of each false utterance in her protection visa claim was not identified by the visa applicant either in her interview with Mr. Castrission or her subsequent letter of explanation dated 24 October 2000, it is clear enough that the substance of her persecution allegations was a fabrication. Among other things she claimed that her solicitor had made up "the story" and that she used "the same story" when appealing to the Minister for his intervention under s.417 of the Act. The applicant did not seek to call his wife to give evidence or to contest the proposition that she had deliberately made false statements to the Immigration Department. I too find that the visa applicant does not pass the character test.

3. The remaining question is whether or not a discretion should be exercised to allow re-entry to Australia notwithstanding this adverse finding.    The primary and secondary considerations specified in the Minister's Direction must be assessed and weighed, and I must then exercise my own discretion in accordance with well-established principles recently discussed by Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs (200l) FCA 514.   

4. In my opinion the visa applicant's deceitful conduct was very serious in the circumstances.   Her false statements may have been the product  of conspiracy between herself and her migration agent, but I make no specific findings as to the latter's involvement,  as his implication in the alleged conspiracy depends exclusively upon the visa applicant's assertions which may well be fabrications themselves designed to divert responsibility from her to someone else.   She professes remorse, but whether this is born of genuine repentance or is merely self-reproach at being found out, or is it an attempt by her to ingratiate herself with authority is difficult to say.

5. Members of the Tribunal have consistently emphasised the gravity of sustained fraudulent conduct in relation to this country's immigration laws, see Lachmaiya and Department of Immigration and Ethnic Affairs 1994, 14 AAR 148; Renata and Minister for Immigration and Ethnic Affairs 1994, 19 AAR 157 @ 159; Prasadandv Minister for Immigration and Ethnic Affairs 1994, 35 ALD 780 @ 781; Baker and Department of Immigration and Ethnic Affairs 1995, 37 ALD 744 @ 751 and Armecchini and Minister for Immigration and Multicultural Affairs 7 May 1997,  AAT 11838.

6. It has also been recognised that general deterrence is usually a significant factor in cases of this kind.   The visa applicant has not only provided false information but she has worked illegally in this country.   It was submitted by the respondent that the refusal of the visa applicant's application and the reasons for that refusal are likely to become widely known throughout the Filipino community in Australia.   If this is so, and I accept that it is, there is a likelihood that there will be a pronounced deterrent effect within that community and probably beyond.  Mr. Castrission said in his affidavit that the Australian Embassy in Manila encounters many applicants who present bogus documents, lodge false claims, and make false and misleading statements to departmental officials.   He confirms that the Philippines community is generally very close knit and the fact of a visa refusal tends to become widely known.   This, he says, seems to have a positive effect upon subsequent applicants.   In my opinion the Australian community would expect that a visa applicant who fabricates and persists in a false story of persecution  to gain entry to Australia should be refused admission.    The migration authorities should be able to rely on material contained in a visa application form or other official documents.  Considerable time and expense will frequently be involved in discovering a deception.

7. There are no children of the applicant and visa applicant's union.   The visa applicant is a Philippine national and her siblings and parents live in that country.  As already mentioned she lives with her parents.  She is unemployed.   If the applicant and the visa applicant are genuinely married (and there is no present reason to find to the contrary), they will continue to live separately and apart unless Mr. Tuipuloto decides to live in the Philippines.    In evidence before me, he said that if the present application to review proved to be unsuccessful, he will remain in Australia but will continue  to support his wife financially.

8. These are factors to be weighed in the balance in considering whether or not to exercise the discretion, but after anxious consideration I have come to the conclusion that they are insufficient to load the discretionary scales in favour of the visa applicant.    In my opinion the decision under review should be affirmed and I so order.

   I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C R Wright Q.C. (Deputy President)

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  16 May 2001
   Date of Decision  28 May 2001
   Representative for the Applicant   Ms Maklita Maka
   Counsel for the Respondent    Mr Zac Chami
   Solicitor for the Respondent    Messrs Clayton Utz, Solicitors