Whittle and Minister for Immigration and Multicultural Affairs - [2000] AATA 758

DECISION AND REASONS FOR DECISION [2000] AATA 758

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1301

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BARRY WHITTLE
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date30 August 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant, FLORENCE WHITTLE (nee AWING), and she be given the visa she seeks.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa refusal – misleading immigration authorities – visa applicant's motivations – risk of re-offending.
Migration Act 1958 s 501

REASONS FOR DECISION

30 August 2000 Deputy President DP Breen, Presidential Member

This is a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs dated 21 January 2000 to refuse the visa applicant, Florence Whittle (nee Awing), a Sub-Class 309 (Spouse) Visa. The appeal was brought by Barry Whittle, the visa applicant's husband.
The matter was heard by me in Townsville on 7 August 2000. Mr Whittle was represented by Mr G Lynham of Counsel, instructed by Messrs Purcell Taylor. The respondent Minister was represented by Ms B Ward of the Australian Government Solicitor's Office.
The following documents were admitted into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Copy of relevant pages of the visa applicant's original passport
Exhibit 3 Statement of Barry Thomas Whittle
Exhibit 4 Statement of Florence Awing

Ms Awing's visa was refused on the ground that she was not of good character under Section 501 of the Migration Act 1958. This finding was based on her general conduct and infringements of Australia's migration laws.
Ms Awing is a citizen from the Philippines. In 1994 she decided to travel overseas to work as job opportunities were not good in the Philippines. She approached an agency to help her organise the work contract and visa for Singapore and gave them her passport to facilitate this. A few weeks later she went back and paid them 30,000 pesos as required, which she had borrowed from her uncle, and was given her travel documents. She found that her original passport had been cut and she was given another passport with her photograph but the name Corazon Awing. The visa applicant questioned the agency about this but was simply told not to worry about it, everything would be okay.
This was six weeks before the visa applicant was due to travel to Singapore. She now had a debt of 30,000 pesos to repay, and with no money to obtain another passport and visa in her correct name, she felt she had no other choice but to travel under the false name. She went to Singapore and worked there for two years. However, the pay was insufficient for her to repay her uncle. Ms Awing could still not afford to go through the process of paying another 30,000 pesos for a new passport and visa to obtain further work, so using the false passport she arranged for work in Hong Kong where the wages were higher. She returned to the Philippines for one month late in 1996 and then moved to Hong Kong. By the end of 1997 she had repaid her uncle.
In 1998, whilst still in Hong Kong, she met the applicant, Barry Whittle who is an Australian citizen. They formed a relationship and decided to get married. In March 1999, Mr Whittle travelled to the Philippines and on 7 April they were married. On 15 April 1999, the applicant had to return to Australia due to work commitments. That morning he and the visa applicant filled out the application for Ms Awing to immigrate. Ms Awing only has a limited understanding of English and so Mr Whittle was assisting her as they were in a hurry. In response to the question of whether she had ever been known by any other name, she said "no". It had only been her first name which had been different and she had only ever used it to travel. It was not a name she actually used in every day life. As such, neither thought it would be a problem. It is this statement which amounts to a misleading declaration and a false statement to the immigration authorities.
On 16 April, Ms Awing was interviewed by the Department. She mentioned that she had worked in both Hong Kong and Singapore for four years. She was then requested to get Police clearances for both of those countries. On 22 April she informed the Department of the fact that she had used another name when travelling to those places. The results of the Police clearances show that there were no criminal convictions against the visa applicant and she has since obtained a new passport in her correct name from the Philippines Government.
The delegate of the Minister relied on her travel to two countries for extended periods of time, her mis-statement to immigration authorities, and her delay in providing a correction to that mis-statement, as evidence of a want of good character and the basis for refusing the visa.
On the basis of the mis-statement to the immigration authorities, albeit an inadvertent one, it is the Tribunal's finding that Ms Awing has shown a lack of good character. It is therefore a matter for the Tribunal to decide whether, notwithstanding this, that the discretion under Section 501 be exercised in favour of the visa applicant.
It is the Tribunal's view that the use of the false passport was due to naivety and necessity rather than any sinister or criminal intent. While the explanation put forward by the visa applicant seems unlikely, by Australian standards, without some substantial evidence to provide an alternative explanation or suggest some other motive, it cannot, however, be dismissed out of hand. The Department cannot simply assert that there must have been some reason why the visa applicant could not legally travel under her real name when there was no evidence whatsoever to suggest that this was the case.
The Tribunal is also of the view that the filling out of the immigration forms in 1999 was in circumstances where time was of the essence and there was a lack of understanding as to the significance of the question asked. There was no criminal motivation behind the answer given. The visa applicant is now aware of how important it is to completely and frankly disclose information to the immigration authorities and is unlikely to infringe immigration laws in the future. Given her lack of a criminal history in any of the three countries she has lived in, it is highly unlikely she will infringe other Australian laws if she is granted the visa.
Mr Whittle is an Australian citizen. He has a good work record and is willing to support his wife if she comes to Australia. The relationship between them is clearly genuine. Ms Awing has an aunt, a cousin and a sister who reside in Townsville. All of the evidence points to the visa applicant becoming a positive member of the Australian community if she is permitted to reside here.
If the visa is refused, Ms Awing will suffer hardship as she may be separated from her husband and she will have to continue to rely on her family for support, due to the shortage of employment in the Philippines. Mr Whittle will also suffer hardship. If he stays in Australia he will be separated from his wife. If he travels to the Philippines he will be unlikely to obtain work and he is not eligible for a pension to allow him to live there.
The Australian community is clearly at no risk from the visa applicant. Her activities are certainly not abhorrent and both she and her husband would suffer hardship if the visa were refused. For these reasons the Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant and she be given the visa she seeks.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  7.8.00
Date of Decision  30.8.00
Counsel for the Applicant        Mr G Lynham
Solicitor for the Applicant         Messrs Purcell Taylor
Counsel for the Respondent
Solicitor for the Respondent    Ms B Ward, Australian Government Solicitor's Office