Watson and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 677
•9 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 677
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/1512
GENERAL ADMINISTRATIVE DIVISION )
Re LEON NEWTON WATSON
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date9 August 2002
PlaceMelbourne
Decision The decision under review is affirmed.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Immigration - spouse visa - whether applicant fails to pass the character test - past general conduct - false and misleading information - whether discretion should be exercised - Direction No 21 - genuine marriage to an Australian citizen - hardship to immediate family - decision to refuse affirmed.
Migration Act 1958 – s501
Ragni Mala Prasad v Minister for Immigration & Ethnic Affairs (AAT Decision No 9822, 7 November, 1994)
Re Moengangongo v Department. of Immigration & Multicultural Affairs [2001] AATA 74
Tuiono v Department of Immigration & Multicultural Affairs [2001] AATA 92
Lachmaiya v Department of Immigration & Ethnic Affairs (1994 19 AAR 148)
REASONS FOR DECISION
9 August 2002 Mr S P Estcourt QC., (Deputy President)
This is an application by Leon Watson ("the review applicant") for the review of a decision made by a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the respondent") refusing, pursuant to s501 of the Migration Act 1958 ("the Act") to grant to the applicant's wife Celina Yabut ("the visa applicant") a Sub-class 309 Spouse (Provisional) Visa and a Sub-class 100 Spouse (Migrant) Visa.
Section 501 of the Act provides relevantly:
"501(1) The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.
…
501(6) For the purposes of this section, the person does not pass the character test if:
…
(c) having regard to either of the following:
…(ii) the person's past and general conduct;
the person is not of 'good character'."
The exercise of power under s501 of the Act involves, firstly, a consideration of whether the visa applicant is of good character and second, of whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant in the event of his or her failure to pass the character test.
In his decision the respondent's delegate refused to grant the visa applicant's visa under s501(6)(c)(ii) on the basis that he found the visa applicant had not satisfied him that she passed the character test or that he should exercise his residual discretion in her favour.
This visa applicant was born on 1 December 1964 in the Philippines and is one of 11 children. Three of her siblings reside in the United States of America and the remaining seven in the Philippines. Both her parents are deceased.
On 9 December 1999 the visa applicant arrived in Australia on a two month visitor visa. On the day her visitor visa was due to expire, namely 9 February 2000, the visa applicant applied for a protection visa. She has since stated that she did not have any real claims for protection but fabricated a story with the assistance of an Australian citizen, Ms Irene Tuason, a friend of hers for whose wedding the visa applicant had come to Australia.
The visa applicant's protection visa application was refused on 8 March 2000, and she applied to the Refugee Review Tribunal for a review of that decision, notwithstanding that she knew her claims were fictitious. The Refugee Review Tribunal affirmed the decision refusing the protection visa on 27 October 2000.
The review applicant is 46 years old and like the visa applicant had never been previously married. The couple met at a social club in about March 2000 and started going out together. They were engaged in July 2000 and married on 14 October 2000, a fortnight before the decision of the Refugee Review Tribunal.
It was only after the visa applicant and the review applicant became engaged that the visa applicant told the review applicant that she had lodged a false protection visa application. At that time, they had been going out together for about four months.
10.Paragraph 1.9 of that Direction relevant provides:
"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 of the particular case) and where they are relevant, would, in the absence of any countervailing factors constitute a failure to pass the character test:
…(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in sub-section 501 of the Act about the non-citizen's character or conduct or both."
11.Whilst a countervailing factor in this case may be that the visa applicant acted under the advice and influence of her friend, Ms Tuason, in making her false protection visa applicant and in appealing to the Refugee Review Tribunal, it is clear that Ms Tuason told the visa applicant the story she had concocted prior to submitting the visa application form, that she read the story out to the visa applicant and that notwithstanding the visa applicant signed the application form.
12.It is accepted by the visa applicant in her statement of facts and contentions that her application was not bone fide, that it contained false information, that she did not have a boyfriend in the Philippines and that she did not have any fear of returning there as stated.
13.Whilst I take into account that the visa applicant had limited education and spoke and understood little English and had no knowledge of Australian migration laws, her actions cannot be classed as misguided and in my view demonstrate an absence of the enduring moral qualities required to satisfy the character test under s501 of the Act.
14.Ministerial Direction 21 provides by paragraph1.11 that general conduct also includes recent good conduct and that both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. Relevantly therefore, it should be noted that there is no suggestion in this case that the visa applicant is of bad character other than in an immigration sense. Further, I take account of the fact that following disclosure to the review applicant the visa applicant made a full disclosure of her wrongdoing. However, I note that she, with the apparent concurrence of the review applicant, waited for almost six weeks before doing so, still hoping in the meantime that the fraudulent application before the Refugee Review Tribunal might succeed.
15.In Ragni Mala Prasad v Minister for Immigration & Ethnic Affairs (AAT Decision 9822, 7 November, 1994), Deputy President McDonald observed:
"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness."
I respectfully agree.
16.I also agree and adopt the observation of Deputy President McMahon in Lachmaiya v Department of Immigration & Ethnic Affairs (1994 19 AAR 148) where the Deputy President said:
"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."
17.In my view, notwithstanding that the visa applicant may be otherwise of good character, any good qualities are overshadowed by her participation in the lodgement of her false protection visa application and the perpetuation of that fraudulent conduct in allowing an appeal against the refusal of the protection visa application to go forward to the Refugee Review Tribunal.
18.I find that the visa applicant does not pass the character test.
19.Turning to the residual discretion under s501 of the Act to nevertheless grant a visa in the face of a failure to pass the character test, Ministerial Direction No.21 requires the Tribunal to adopt a balancing process between three "primary considerations" and a number of "other considerations".
The three primary considerations are:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
21.A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No.21, a consideration of:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated;
(c)the likelihood that the visa refusal would prevent like offences by other persons.
Ministerial Direction No. 21 makes it clear that the Australian government regards serious offences against the Migration Act as very serious. This is not surprising as s234 of the Act makes it an offence, in connection with the visa application to make a false or misleading statement and provides a penalty for a breach of that section of 10 years imprisonment or a fine of $110,000 or both. I am satisfied that the visa applicant's conduct is serious notwithstanding, as I have already observed, she spoke and understood little English and was acting under the advice and influence of an Australian citizen.
As to the likelihood that the conduct may be repeated, the fact that her application is for a permanent visa renders it remote that this sort of behaviour would again manifest itself, particularly as it now appears that she appreciates the gravity of her conduct and its repercussions.
24.Given the relative ease with which a tourist visa may be obtained and the temptation once in Australia to make a false protection visa application, it is important to consider the question of general deterrence and I am satisfied that in a case such as this, if the visa applicant is refused entry because of her breaches of Australia's migration laws, other persons similarly minded may be deterred from following suit.
25.As to the expectations of the Australian community, it is my view that it is expected that non-citizens will be open and honest with migration officials in relation to visa applications and the community would not expect a person who has made a false claim for protection and perpetuated that false claim in the Refugee Review Tribunal to be later afforded the privilege of a visa (notwithstanding a genuine marriage to an Australian citizen in the meantime).
There is not, in this case, any relevant parental relationship.
27.In addition to the three "primary considerations" set out in Direction No. 21, I am required to have regard to relevant "other considerations" which may be taken into account, although generally accorded less individual weight than the "primary considerations".
In this respect the Direction provides as follows:
"OTHER CONSIDERATIONS
2.17When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
'The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State."
Article 17.1 provides that:
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation."(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
in assessing the compassionate claims of the Australian partner (Australian citizen, permanent resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the breach (outstanding legal or on-going matter, any cost or bilateral implications of such a eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or a permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellations provisions at section 501."
29.The review applicant is the eldest of four children. He was born in Grafton, New South Wales where he grew up until at the age of 15 his father transferred his employment to country Victoria. Thereafter the review applicant lived in Warragul for about 15 years. After he finished high school in New South Wales he completed an apprenticeship as an electronics radio and tv tradesman and subsequently worked for a radio firm in Dandenong for about 9 years. He ended up leaving home when he took work in Sydney when he was in his late 20's. Up until then he had lived with his family.
30.At the time the review applicant met the visa applicant he was living independently. He had had other relationships in his life, but not close enough for him to consider marriage. At the commencement of their relationship they lived separately, but the review applicant moved in with the visa applicant after they had been going out for about 4 months and he supported her from then on.
31.The review applicant gave the following evidence before the Tribunal. It was not shaken in cross-examination and I accept it:
"I have a strong and genuine relationship with my wife Celina. I have been devastated by our separation. The ongoing uncertainty is causing me immense stress and anxiety. I am very concerned at the prospect of refusal of my wife's application. I cannot see how I can live in the Philippines. I do not speak the local language. Unemployment is high. It is hard enough for local people to get work. My skills would not equip me for work there. Some foreigners work in tourism or own bars but I have no skills in that area. I do not have the funds to set up a business. Also, I am very close to my own family in Australia and do not want to leave them for an extended period. I do not have the money to fly back and forth.
I have never had previous experience with immigration matters. When I first met Celina I did not know of any potential character problems as far as immigration was concerned. I entered a loving relationship in good faith. As our relationship developed I learned that Celina had lodged a protection visa application but knew little of the details. Our marriage was a very happy occasion. I was looking forward to a life together in Australia."32.The review applicant also tendered reports from his general practitioner, Dr H.P. Sze-Tho and a consultant psychiatrist, Dr Dan Lubman. I accept that Mr Watson has suffered stress and anxiety, at least from early February this year and has a depressive disorder precipitated by ongoing stressors related to the visa applicant's migration. I also accept that his physical health has deteriorated significantly as a result of his stress and that he is at significant risk of further deterioration in his psychiatric condition if his wife's appeal is not successful.
33.I have considered each of the "other considerations" which have application to this case and I am satisfied that very great hardship will be suffered by both the review applicant and the visa applicant as a result of the refusal of the visa applicant's applications.
34.One cannot but have considerable empathy with the review applicant's position, although in considering his compassionate claims, I note that whilst he may not have realised the gravity of the visa applicant's migration misconduct until after the couple sought legal advice about a month before their wedding, they were in fact married at a time when the review applicant had full knowledge of that misconduct and whilst, to his knowledge, her fraudulent protection visa application remained a pending appeal before the Refugee Review Tribunal. (The Refugee Review Tribunal's decision was in fact handed down about a fortnight after the marriage).
35.In considering the question of the visa applicant's rehabilitation and any recent good conduct I note that there was no evidence that she has been of other than exemplary character since her departure from Australia on 26 November 2000, although I repeat my earlier observation that she waited for almost six weeks after receiving legal advice as to the gravity of her situation before she acted in a proper fashion and quite deliberately awaited the outcome of her appeal against the refusal of her fraudulent protection visa application before doing so.
36."Recent good conduct" has been held to mean recent good conduct in an immigration sense (Re Moengangongo v Department of Immigration & Multicultural Affairs [2001] AATA 74 at para.40).
37.If that construction is correctly applicable to paragraph 2.17(h) of Ministerial Direction No. 21 there is really no evidence of recent good conduct apart from her acknowledgment of her misconduct.
38.If, on the other hand, as was thought possible by Deputy President Block in Tuiono v Department of Immigration & Multicultural Affairs [2001] AATA 92 at para.9(b), the concept of recent good conduct is wider than conduct in an immigration sense, it would be appropriate to have general regard to the visa applicant's good conduct since leaving Australia. It is difficult however to see how such recent "good conduct", irrespective of the true width of that concept, could carry sufficient weight to overcome the seriousness of the visa applicant's earlier misconduct given that such a relatively short period of time has elapsed since.
39.Having considered all relevant "other considerations" I am of the view that they do not outweigh the "primary considerations" in this case and accordingly the Tribunal does not exercise its residual discretion in favour of the visa applicant.
40.It follows the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller .....................................................................................
Administrative AssistantDate/s of Hearing 17 July 2002
Date of Decision 9 August 2002
Counsel for the Applicant Mr Guy Gilbert
Solicitor for the Applicant Glass & Co Lawyers
Counsel for the Respondent Mr Tony Fell
Solicitor for the Respondent Australian Government Solicitor
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