Wyatt and Minister for Immigration and Multicultural Affairs
[2001] AATA 29
•22 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 29
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1818
GENERAL ADMINISTRATIVE DIVISION )
Re KEVIN WYATT
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date22 January 2001
PlaceSydney
Decision The decision under review is affirmed.
.............[sgd J Block]....................
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – refusal on character grounds – false protection visa application – disregard for Australia's immigration laws – application of character test – balancing the desirability of consistency in decision-making against the need to do justice in the individual circumstances of the case – application of discretion under Part 2 of Direction 17
Migration Act 1958 – sections 234, 235, 417, 499, 501
Passports Act 1938 – sections 9A
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443
Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956
Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Re Msumba and the Department of Immigration and Multicultural Affairs [2000] AATA 87
Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967
REASONS FOR DECISION
22 January 2001 Deputy President J Block
(a) This is an application for the review of a decision by a delegate of the Respondent made on 8 November 1999, refusing an application for a Class UF Subclass 309 Spouse (Provisional) Visa and a Class BC Subclass 100 Spouse (Migrant) Visa by Mrs Maria Perpetua Wyatt (née Bautista) ("Mrs Wyatt") and in respect of which the Applicant, her husband, was the sponsor. The refusal was made in accordance with section 501 of the Migration Act 1958 ("the Act"), the relevant parts of which read as follows:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test
…
(6) 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.
(b)The Applicant was represented by Mr Ron Kessels, solicitor, while Ms Jodie Maurer of the Australian Government Solicitor appeared for the Respondent. The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with the following exhibits:
Exhibit A1 Applicant's chronology
Exhibit A2 Draft statement of evidence for Domingo Bautista (undated)
Exhibit A3 Draft statement of evidence for Mariper Aguilar (undated)
Exhibit A4 Statutory Declaration of Kevin Wyatt dated 15 December 2000
I intend, in this paragraph 2, to include a number of documents submitted by the parties, precisely because they set the scene and furnish the background which is relevant to this matter. My inclusion of the documents referred to in subparagraphs (b), (c) and (d) should not be construed so as to mean that I agree with all of the content. In this regard:
(a) I commence with Exhibit A1 which is the Applicant's chronological summary ("the Chronology") of relevant events. It is perhaps relevant to note that the Chronology, which was agreed as correct by the Respondent, is in fact a revised and corrected Chronology, and replaces an earlier version tendered when the hearing first commenced. The Chronology reads as follows :
Date Event / Document Ref
08/01/1958 Applicant born in Philippines
27/03/1977 Applicant marries first husband Tpg283
25/09/1977 Edrianne Aguilar born – Philippines 290
/04/1979 Applicant completes bachelor of science degree in chemistry Tpg 284
14/05/1979 Mariper Aguilar born - Philippines 290
/06/1979 Applicant works as teacher in Philippines until December 1987 Tpg285
16/10/1982 Edper Aguilar born – Philippines 290Applicant seperates from first husband and moves back to parent's home
16/10/1988 Applicant travels to Australia on visitor's visa
23/10/1990 Application to remain permanently in Australia Mention at T16, p150
30.3.1992 Applicant departs Australia in correct name T pg 411
07/05/1992 Applicant re-enters Australia in correct name T pg 411
23/08/1993 Applicant divorces first husband T pg 303
25/09/1993 Applicant departs Australia
03/10/1994 Applicant re-enters Australia as Antonette Montefalcon
14/09/1995 Applicant applies for Protection Visa as Antonette Montefalcon T9
21/09/1995 Execution of search warrant on 3/460 Pacific Highway Lindfield Pg 187/188
22/09/1995 Interview with applicant at Villawood detention centre T16
25/09/1995 Applicant released from detention after changing protection visa into correct name – granted bridging visa E T pg 206
27/09/1995 New protection visa form lodged T pg 194-226
13/10/1995 Permission to work granted – bridging visa E T pg 225
17/10/1995 Protection visa application rejected T pg 246
17/11/1995 Application for review of protection visa decision lodged with RRT
12/08/1996 Applicant pleads guilty to and convicted of various criminal matters Tpg 258,280
/10/1996 Applicant and nominator are engaged
14/03/1997 Applicant marries sponsor and couple move into 2/5 Thomas St Parramatta Tpg 295
11/11/1997 RRT affirms refusal of the rejection of applicant Protection Visa application Tpg263
21/11/1997 No intervention under s417 – (but does not appear to have been asked for). Tpg 268
11/08/1998 FOI application lodged Tpg 270
17/12/1998 Applicant departs Australia in own name on bridging visa E
04/03/1999 Application for 309 Spouse (Provisional) visa With Australian Embassy Manila Tpg 281-298
22/04/1999 Applicant interviewed in Manila about 309 application
08/11/1999 Decision to refuse 309 application Tpg5All references are to the T documents.
(b)The Applicant's statutory declaration dated 15 December 2000 (Exhibit A4), reads as follows :
I was born in New Zealand in 1953, there were six children in my family. Out of the six I am the only one who has left there and lived permanently overseas away from the family. My younger sister does travel to Australia regularly with her husband who has employment here. I have seen her only once this year.
At the age of 14 I went to live with my grandmother and then attended a boarding school, from there I went to live in Wellington a city some 400 miles from Auckland. My family lived in Auckland. I attended a college in Wellington doing a course in design. At the age of 20 I returned to Auckland where I lived for a year and then went to live in England where I also attended a design degree course. After completing the degree course, a period of five years, I then came to live in Australia in 1979. I have lived here since then a period of 21 years.
I met someone in England and they came back to Australia as my de facto but the relationship was not successful and only lasted a few years, they then returned to live in England. I have not returned to New Zealand to work but have visited there occasionally.
Prior to meeting Marie I lived on my own here in Australia for long period of time. With no family here I have had periods in my life when I have been very alone. Once I locked myself out of my flat and found I had no one to turn to put me up for the night until the next day when I could get a locksmith to open my front door. I guess you make casual friends easily but I have found for myself close friends have been few and far between.
I had not found it easy to meet a partner. Marie and I found each other and we have proved to be very compatible, we are both husband and wife and also best friends.
We both have a simple ambition, that is to have our own home and to have our own family in it. Our dream is to build a new home in the outer suburbs here in Sydney, we have a project home picked out, and when we have been free we have often visited it. We often joke that the sales people when they see us coming in remark to themselves, "its them again."
My wife has told me that prior to coming to Australia her life was under threat and that this was a consequence of some significant problems she had with her recently estranged husband.
When I married my wife I did not fully understand the nature and extent of what she had done and the problems that this would cause for her to stay with me in Australia. My wife was very badly affected and traumitised by her past experiences. She also did not wish to discuss many events surrounding her experiences with me, again I did not fully understand how seriously they had affected her. My wife had become something of a workaholic and during her time here together with me in Australia would usually work 90 to 100 hours a week, I realise in hindsight that my wife was denying to herself the traumatic and violent nature of the events that caused her to come to Australia and also the consequent event of being put in jail. My wife became something of a workaholic so she would not have to think at all about the problems she had in her life. It was only when I saw my wifes file that we had requested from the Department of Immigration that I fully understood what my wife had done.
I first met my wife in December 1992. We became friends and we would see each other on a weekly basis, at first perhaps one night a week. We shared similar interests, and would sometimes stay in my flat and watch videos or would go to the movies, occasionally we would venture further afield and go for drives in the country or similar things.
10. After approximately four or five months I became aware that Marie had a problem with her visa and with the Department of Immigration and Multicultural Affairs. For myself it was very difficult to advise Marie of what to do in this situation as I had no experience in any matters remotely like this and I don't think she knew quite herself what to do. We had become good friends but it was still a relatively new relationship so I didn't also wish to delve to deeply into her personal life.
11. I have a very vivid memory of coming home one day form work and finding a message on my answering machine from Marie saying that she had been detained inside Villawood Detention Centre. She did have the opportunity I believe to leave Australia at any time before this but put it off as long as possible so she would not have to face her ex husband in the Philippines. She had divorced him while she was in Australia and emotions I think were running fairly hot.
12. I visited Marie in the Villawood Detention Centre, where she was detained for a number of days. She was released from there and given two weeks to finalise her affairs and leave the country.
13. During these two weeks my wife and I discussed marriage however although I did not agree to marry her at that time, we did see a lawyer about this and he seemed confident that we had a chance for her to stay here in Australia, and he was prepared to help us with our application.
14. There are a number of reasons I did not procede with marring Marie at that time, firstly I felt I had not known her that long, and secondly the situation was becoming too urgent and I hesitated because of this. However the main reason that I did not persue marring Marie at that time was that I had asked my parents to meet Marie to which they refused. For them they regarded someone from the Philippines as being unacceptable to be with their son. And also to visit and stay with them in their house.
15. Such a small decision then has now led to so much hardship and pain now in our lives it is only with hindsight that I can see if I had of married her then instead of now our lives would have taken on a very different course of events, and of course I regret that now.
16. I saw Marie off at the airport and she returned to her children and her parents. We kept in touch by mail and phone calls and I visited her there once. However after a while our contact became less because, her problems on her own home front became greater. For some months I didn't hear from Marie until one day she called me in Sydney and told me she was back here and living in Ryde.
17. I obviously asked Marie how she had managed to come back to Australia and she told me that she had obtained a visa. I was uncertain about this but accepted what she told me as I knew very little about immigration procedure. Also, although I knew her very well, I did not know a lot about her personal details such as her financial situation for example and accepted that it might have been possible that she had obtained a visa in some lawful way.
18. For myself things started to became rather complicated because I could see a major confrontation between myself and my parents if I became involved with Marie but on the other hand I still felt attracted to her and wanted to see her. We did continue on just as friends for a while though and we did see each other and went out together on different occasions, fishing, on picnics, movies, dinner. Our relationship was renewed and we began to go away together for weekends and to spend the occasional night together.
19. In 1995 Marie was arrested again and taken to Villawood Detention Centre for a couple of days. I did not know this at the time but she told me as soon as she was released. She told me that she had made an application for a visa through a migration agent and that she could stay in Australia while that was being processed. I did not know the details of the application at that time. In particular, I did not know that it was lodged in a false name.
20. A couple of months before she was detained, I had discovered that she was not lawfully in Australia and that she had entered Australia illegally. With my encouragement, Marie agreed to see a migration lawyer for advice. I did not go with her. At that time we were only seeing each other about once a week on a causal basis and, although I cared for her, I did not really want to become involved in her immigration situation but was concerned to ensure that she did something to sort it out.
21. Over the next year, our relationship continued in the same manner. I became aware that Marie's application had been rejected and that she had appealed, although I still did not fully understand what was going on. I did speak to her about the fact that I felt she should return home at that point but Marie told me that she felt she could not go because of the threats from her ex-husband and the fact that she felt committed to supporting her family financially through her work in Australia. We were still not close enough that I felt that it was my place to press her further about these things and I assumed that her agent was doing the right thing.
22. Our relationship continued to develop and by the time she was imprisoned for the migration offences in late 1996, I realised that Marie had become a vital part of my life, and me of hers, and that I wanted to remain with her for the rest of my life. It was at that point that we discussed marriage seriously for the first time. I had assumed at that time that our marriage would mean that Marie would be able to remain with me in Australia. It was only after we were married in March 1997 that I was told for the first time by the agent that Marie would have to leave Australia to make an application but that she would only be gone for a short time.
23. My wife and I sought legal help from other agents who were recommended to us. As part of this my wife's file was applied for under the Freedom Of Information law from the Department of Immigration and Multicultural Affairs by our solicitor. The solicitor had said it was a complicated course of events that my wife had been through and he could not really do anything until he had seen the file the application for which was made on the 10th August 1998.
24. The file did not arrive for some inordinate length of time. The lawyer made several inquiries as to its whereabouts, my wife made numerous inquiries and I myself made numerous inquiries. I even went in to the Department of Immigrations office in Parramatta and asked for the file. My wife and I finally gave up waiting for her file and we decided to do the application ourselves. We completed all the material and she left the country and lodged it.
25. In determining whether to grant my wife a visa I would ask that the Tribunal consider my wife's and my own ages. My wife is 42 and I am 48 years of age. At our age if we go elsewhere to live we will have to re-establish our careers, I think this will be very difficult for us to do at our time in life. My wife is qualified with a degree in Chemistry and also has teaching qualifications; I am qualified with a degree in Design and also a certificate in Engineering.
26. I have a small business here doing engineering design and draughting, it has been difficult to start this on my own, it has taken me many years to get to this stage, I have unique skills in what I do and don't want to give it up now. These skills are in design, industrial design and engineering draughting. I have considerable plans for my business' future, I have seen what I can do here and wish to achieve so much. To go elsewhere I will have to start from scratch.
27. I would like you to consider that my wife while working in Australia has worked I as an assistant nurse, my wife worked in a number of nursing homes here and I she has a talent for this type of work she also has a great deal of empathy and I love that she shares with those she has nursed. My wife has a science degree, her ambition if she can return here is to requalify as a nurse and become a registered nurse here. My wife has done a number of course in the nursing and care of people with dementia. Being a scientist she has also researched this subject and has read a great deal on it. My wife was highly regarded by her colleagues, however I doubt whether any of them fully realized just how much effort she put into her job, however they all admired her skill and empathy in dealing with the people she nursed.
28. I would like you also to consider that my wife and I both have superannuating investments here in Australia. With the law as it is today we can not take these investments with us from Australia. If we can not add to them they will not grow. Consequently these investments will benefit others in the fund here and not us. If we try and establish ourselves in another country what happens at the age of 65 when we wish to retire if we have no money we would have no safety net in that of having access to any government pension.
29. I would like you to consider that my wife's children are all reaching the age when they are soon to finish their studies and will have to find their way in the world, the Philippine economy is such that it is extremely difficult for them to find jobs easily and they will most likely have to travel away from their district to work when they do go to work. When this happens I feel it will be difficult to bring them again together and my wife and I will have lost them as a united family.
30. I would like you to consider that I have lived and been a resident in Australia since June 1979, a period of 21 years, I do not want to go elsewhere. This is my home. I am a New Zealand citizen resident in Australia for those 21 years. Our ambition was and still is for my wife and myself to become Australian Citizens together as soon as it is appropriate.
31. My wife has three children, Adrianne, Mariper and Edper who are included in the application.
32. My wife eldest son Adrianne is now 22 years old he is studying a Marine Engineering Degree and wishes to pursue a career in this field. Adrianne has an interest in shipping and travelling and is well suited to this field.
33. My wife's second eldest child, her daughter Mariper, who is now 21 yeas old has just completed a Bachelor of Commerce Degree in Marketing and is currently completing a Masters degree in Commerce. Mariper has a long list of accomplishments such as publishing a number of her own magazine articles and also being assistant editor of her colleges' newspaper amongst other things.
34. My wife's youngest son Edper is currently studying a diploma course in computer programming and intends to do a Bachelor of Commerce Degree in Accounting. Edper is also a keen basketball player.
35. My wife's children are all reaching the stage when they are soon to finish their studies and will have to find their own way in the world, the Philippine economy is such that it is difficult for them to find jobs easily and they will most likely have to travel away from their district to work when they do go to work. When this happens I it will be difficult to bring them together again as a family and my wife and I may have lost them as a united family.
36. The three children have lived with their grandparents for the last 12 years, in a village in a province 5 hours drive north of Manila. They are not unworldly children by any means but I would not like to see them have to face life alone in other parts of the Philippines. Sometimes work can be found in Manila for professional or qualified people. To live there though is difficult especially starting a career where there is no minimal wage. Accommodation is very bad, it is expensive and also basic, it is what would not be regarded as being acceptable here in Australia, even for the lowest rungs of society. My wife and I agonise over the prospect of these children.
37. In addition to these matters, I am also personally afraid about going to the Philippines to live. I believe my wife's ex-husband to be a violent man who has shown that he will resort to violence to obtain money. I am concerned that If I we were to live in the Philippines together that he would come to know of it through family connections and that he may try to harm me or Marie.
(c)I next set out the whole of the Applicant's Contentions dated 15 December 2000 as follows:
1. In exercising the power under s501, the Tribunal must;
(a)determine as a question of fact whether the visa applicant satisfies the character test as prescribed in s506(6); and, if it finds that the applicant does not satisfies it, then,
(b)determine whether to exercise the discretion provided by s501 to grant the visa despite that finding.
2. In exercising the power under s501, the Tribunal is bound, pursuant to s499 of the Migration Act 1958, by the Minister's direction No17 ("the Direction") which appears at T6 of the T documents. Obviously the Direction cannot unlawfully fetter the power of the Tribunal or the provisions of s501.
THE CHARACTER TEST
3. Relevant to the present application are sections 501(6)(c)(i) and 501(6)(c)(ii). Given the nature of the offences and conduct relied upon by the respondent (basically breaches of the immigration laws of Australia) these submissions will deal with these matters together.
4. The visa applicant has a criminal record. The details of these convictions are set out at T pages 258-261. In short, they concern various offences under the Migration Act 1958 and the Passports Act 1938 (see attachment "A" and "8" to these submissions). The penalties imposed upon the visa applicant when she was convicted were of significantly less than twelve months imprisonment and do not, therefore, operate to bring the applicant within the provisions of s501(6)(a).
5. It is accepted that the Tribunal must accept the fact of the convictions (the visa applicant does not contest them in any event). Whether or not the Tribunal is obliged to accept the facts upon which the convictions were based is unclear, but there is no issue in this case about those facts as they were accepted by the visa applicant at the time she pleaded guilty, and she does not seek to challenge them now.
6. The offences occurred between October 1994 and September 1995. Three of the offences relate to working without permission. The visa applicant did work without permission and admitted this at the time of her interview with the officers of the respondent. Whilst each of these charge relates to a different employer, the "conduct" which is of concern is clearly working without permission throughout the period October 1994 to September 1995.
7. Three of the offences relate to the possession of false passport (two in one name and one in another). The passports all contained the visa applicant's photograph (and seemingly would have been of no use to any other person). In the record of interview, the visa applicant admitted that they were in her possession to be used for identification (presumably if needed) but that she had not used them for this purpose or at all (although question what was meant at page 168). There were no charges laid relating to the use of these documents, although such an offence was specifically provided for by the Passports Act 1938 (see attachment "B").
8. The two remaining charges related to the visa applicant's entry to Australia in a false name (and the consequential lie on the passenger card upon entry to Australia) and her lodgment of an application for a protection visa in a false name.
9. In addition to the convictions the respondent contends, at paragraph 10 of his Statement of Facts and Contentions, that the visa applicant has "admitted" to various matters which is said by the respondent to amount to general conduct such as to lead to a finding that she is not of good character under s5O1(6)(c)(ii).
10. The matters referred to at paragraph 10(c), (e), (f), (g), (i), (I) are all matters which were the subject of criminal charges outlined above. They are therefore properly to be considered under s501(6)(c)(i).
11. In relation to the remaining matters, subject to two exceptions, the applicant accepts that these matters properly fall within s501(6)(c)(ii):(a) The applicant does not accept that she was in possession of false passports in the name of Ramon Bryan and Mary Jane Bryon. What was put to her in the interview were photocopies of those passports which she stated had been sent to her by Ramon. This does not amount possession of false passports and no charges were laid in respect of these documents presumably for that reason.
(b) The applicant cannot accept that the possession (in Australia) of false birth certificates from the Philippines amounts to a criminal act (either in Australia or in the Philippines). There is no evidence that these were used for any improper purpose and no evidence that their possession in these circumstances is unlawful.
12. The respondent does not allege that the visa applicant has offended or engaged in conduct that would indicate that she is not of good character since her offences in 1995 (respondent's statement of facts and contention paragraphs 11 and 15). The respondent concedes that the visa applicant has no criminal record in the Philippines (paragraph 7).
13. The only real issue in relation to the character test therefore is whether, in all the circumstances, the conduct of the visa applicant (both criminal and general) described above supports a finding that the visa applicant is not currently a person of good character (s501(6)(c)). In making this finding, paragraph 1.8 of the Direction requires the Tribunal to take in to account various considerations (1.8(a) –(d)). The Tribunal must also take into account any other relevant consideration (if any).
14. The applicant accepts that the conduct alleged when taken as a whole is very serious within the terms of the Direction (paragraph 2.6(c)). The applicant also accepts that the conduct occurred over a relatively lengthy period and that, if there was no explanation for it, such conduct could clearly support a conclusion that the visa applicant was not and is not a person of good character. However, the applicant submits that there was an explanation for the visa applicant's conduct which is consistent with a finding that such conduct did not mean that she was not (or is not) a person of good character.
15. It is envisaged that the visa applicant will give evidence (corroborated by two witnesses; her daughter and father) that her motives for attempting to remain in Australia in 1988 (by overstaying her visa and making a false application) and for working during that period, were driven by a desire to escape a violent husband from who she was estranged and to provide financial security and education for her children. Further, that her motivation for entering Australia illegally in 1994 and her subsequent offending in this country was similarly driven by her desire to provide financial security and education for her children.
16. It is contended that such motivations, if accepted, might provide "mitigating circumstances" (Direction paragraph 1.8(d)) or "countervailing factors" (Direction para 1.9) such that the conduct should be seen as eminating (sic) not from some fundamental character flaw, but rather as a reaction to a particular set of circumstances. Even though the choices made by the visa applicant were wrong, if they were motivated in this way, then, it is submitted, such actions could still be consistent with a finding that she is of good character within the meaning of that term in s501(6)(c).
17. The question of whether an individual applicant is a person of good character such that he or she passes the character test must be decided on the individual facts of the case. A person's character is something unique and specific to that person -their enduring moral qualities. The Direction contemplates that whilst certain classes of offences or conduct should be seen in a particular light (for example, "serious" or "very serious") clearly not every crime in the same class should be treated the same way (for example there are varying degrees of murder and manslaughter yet they are listed generally as "very serious").
18. Similarly, not every person's reasons for committing a particular offence or engaging in particular conduct will be the same and so, when assessing an individual person's character, no inference can properly be drawn from the fact that other (unassociated) people have committed the same types of offences or engaged in a similar pattern of such conduct. It is submitted that the desirability of consistency in decision making expressed in Re Drake and Minister for Immigration and Ethnic Affairs (No 2), does not permit the Tribunal to draw an inference that a person should fail the character test simply because their conduct is similar to the conduct of others who have also been found to fail. Such reasoning might be construed as (or might lead to) an inflexible application of a policy relating to those applicants found to have engaged in certain types of conduct.
THE DISCRETION
19. If the Tribunal finds that the visa applicant is not a person of good character then it must go on to consider whether to exercise the discretion provided by s501 to grant the visa despite this finding. This involves the weighing of numerous considerations some of which have been identified as being "primary". Whilst the Direction contemplates that primary considerations should generally be given more weight than other considerations, the Direction still requires a balancing of all considerations and does not operate such that other considerations cannot outweigh the primary considerations in any given case.PRIMARY CONSIDERATIONS
The protection of the Australian community
Seriousness
20. As outlined, the applicant accepts that the conduct was serious within the terms of the Direction. However, the conduct was not of a dangerous nature in that it resulted in physical harm to any person or group of persons. The offences related entirely to the visa applicant's immigration situation and there is no reason to believe that she would engage in further conduct of this nature if she was lawfully able to enter and remain in Australia. There is no evidence of any other type of criminal activity or conduct and so there could be no real risk to the Australian community to allow her entry.Deterrence
21. In numerous cases determined by the Tribunal in the last year this issue has been central to the refusal of visas. In light of these cases, the applicant must, accept that the Tribunal's view is that refusal of visas in these circumstances may act as a deterrent. The applicant cannot offer evidence (even if such evidence could be obtained) that this would not be the case. However, there is also no evidence that such refusals are having a deterrent effect. In these circumstances, it is submitted that this factor should not (and cannot) be determinative of the issue before the Tribunal.Expectation of the Australian Community
22. Similarly, in some Tribunal decisions involving offences under the Migration Act it is said that there is an expectation that people should not be "rewarded" for their unlawful behaviour whilst they were in Australia. With respect, the expectations of the community might depend very much on the individual circumstances of the case. For example, even where a person set out to deliberately overstay their visa so that they could continue in unlawful employment, they may not have contemplated forming a relationship with an Australian citizen. The fact that they would not have formed the relationship but for their unlawful behaviour surely cannot mean that the community would see a genuine and loving relationship between them as so "ill-gotten" as to never deserve a visa in any circumstances.
23. If the Act had contemplated such an expectation, why does it allow for persons unlawfully in Australia (regardless of whether they have worked illegally) to apply for a visa on spouse grounds (amongst others) despite their unlawfulness? Why does it not simply provide that people who have committed migration offences in any (or even specific) ways be ineligible to apply for another visa?
24. It is submitted that the appropriate question when determine whether s501 should be applied is not one of reward or punishment but whether the particular character concern about the individual should require that they not be allowed to remain In or enter Australia. Paragraph 2.12 should not be construed as somehow fettering that discretion or adding an additional criteria to the visa application.The best interests of any children
25. It is accepted that there are no children under 18 to who this consideration applies (although there are three children over 18 whose interests will be affected by the decision and which is discussed below).OTHER CONSIDERATIONS
26. The applicant and the visa applicant are in a genuine marital relationship. The couple met in 1993 in circumstances outlined in the statutory declaration made by the applicant on 15 December 2000 and which has been filed with the Tribunal. By the time the applicant married the visa applicant, he was aware that she had immigration problems but, on his evidence, he was not aware that she faced the possibility of being barred from remaining in or re-entry to Australia.
27. The relationship is a long-term one and the applicant has visited the visa applicant in the Philippines. He has met her family and they have made serious plans to buy properly together.
28. The applicant has lived in Australia for over twenty years and has made it his home. He has established a business here and is completely settled in this country. He has given reasons in his statutory declaration as to why he does not want to move to the Philippines, these include significant financial and personal reasons. It is clear from these matters that if he was forced to leave Australia he would suffer significant hardship.
29. The applicant has three adult children who are included in the application. Whilst their relationship with the applicant is not as strong as that of natural children, he has become part of their lives and that of their mother's. If the application was refused and if that resulted in the end of the relationship between the applicant and the visa applicant, this would be bound to have an adverse impact on these children. The applicant attests to the fact that he wants to help them settle in Australia and to keep the family unit together.
(d)The whole of the Respondent's Statement of Facts and Contentions, dated 29 June 2000, reads as follows:
INTRODUCTION
1. The applicant is the sponsor of an application by Mrs Maria Wyatt for a spouse visa. That application was refused by a delegate of the respondent on the basis that Mrs Wyatt did not meet the character test under s 501(6) of the Migration Act 1958 (Cth). The applicant seeks review of that decision.
2. In this document,(a) the Migration Act 1958 (Cth) is referred to as "the Act"; and
(b) the Migration Regulations 1994 (Cth) are referred to as "the Regulations".3. Mrs Wyatt was born in the Philippines on 8 January 1958. Her full given name is Maria Perpetua Bautista.
4. On 27 March 1977 Mrs Wyatt married Edgardo Aguilar in Cabanatuan City, Philippines (T44; p 303). There were three children born of that marriage: Edrianne Aguilar born 25 September 1977 (T44; p 291); Mariper Aguilar born 14 May 1979 (T44; p 291); and Edper Brianne Aguilar born 16 October 1982 (T44; p 310).
4. Mrs Wyatt first entered Australia under the name of Maria Perpetua Bautista as a visitor on 16 October 1988 (T53; p 410).
5. On 23 October 1990 she applied for permanent residence in Australia on the grounds of a de facto relationship with Geoffrey Rowe (T16; p 150). That de facto relationship was contrived for the purposes of obtaining permanent residence in Australia (see admissions T16; p 150). The application was refused and Mrs Wyatt subsequently left Australia on 25 September 1993 (T53; p 411).
6. On 3 October 1994 Mrs Wyatt arrived in Australia using a passport in the name of Antonette Montefalcon (T53; p 408).
7. On 14 September 1995 Mrs Wyatt lodged with the respondent an application for a protection visa in the name of Antonette Montefalcon (T9; p 106 and T10; p 118).
8. On 22 September 1995 search warrants were executed on the premises at 3/460 Pacific Highway, Lindfield, where Mrs Wyatt was living (T17; p 186). As Mrs Wyatt was unable to prove to officials that she was lawfully in Australia, she was detained pursuant to s 189 of the Act and conveyed to the Immigration Detention Centre at Villawood (T17; p 188). She was interviewed by officers of the respondent at the IDC (T16; p 146) and made a number of admissions including;(a) making an application for permanent residence on the basis of a contrived relationship with Geoffrey Rowe (p 150);
(b) working without permission under the name of Mariper Aguilar at Royal Ryde Linen Service and Ryde Nursing Home during the period prior to her departure from Australia in 1993 (pp 151-152);
(c) signing a false document (passenger card) (p 156);
(d) using a false passport (p 156);
(e) working without permission under the name of Mariper Aguilar at Beecroft Nursing Home, Clemont Nursing Home and Whitehall Nursing Home November 1994-September 1995 (pp 162-163) and under the name of Maricar Jimenez at Mark Mayne Dry Cleaners (pp 163.164);
(f) possession of a false passport in the name of Mariper Aguilar containing a false resident visa (pp 165-166);
(g) possession of a second false passport in the name of Mariper Aguilar containing a false Australian resident visa (pp 167-168);
(h) using false documents to obtain a tax file number (p 168);
(i) possession of a false passport in the name of Maricar Jimenez containing a false Australian resident visa (pp 168-169);
(j) possession of false birth certificates in the names of Marianne Bautista Aguilar and Brian Bautista Aguilar (pp 171 - 172);
(k) possession of false passports in the name of Ramon Bryan and Mary Jane Byron (pp 177-178);
(l) making an application for refugee status under a false name (pp 180- 182).
9. On 27 September 1995 Mrs Wyatt lodged with the respondent an application for a protection visa in the name of Maria Perpetua Bautista (T23; p 194 & T24; p 209). She also lodged an application for a bridging E visa that same day (125; p 221).
10. On 28 September 1995 she was interviewed by an officer of the respondent in relation to her application for a protection visa (T 27; p 228).
11. On 13 October 1995 Mrs Wyatt was granted a bridging E visa and permission to work (T25; p 225).
12. On 17 October 1995 the application for a protection visa was refused (131; p 244) and Mrs Wyatt applied for review of that decision by the Refugee Review Tribunal (T36; p 257).
13. On 12 August 1996 Mrs Wyatt appeared in the St James Local Court on 8 charges: three charges of possession of a false passport contrary to section 9A(f)(i) of the Passports Act 1938 (Cth); three charges of working without permission contrary to s 235(3) of the Act; and two charges of making a false statement contrary to s 234(1)(b) of the Act (T37; p 258). Ms Wyatt pleaded guilty to all charges and was convicted. On the passport charges she was sentenced to 3 months' imprisonment, to be released after 7 days on a recognisance, self, in the sum of $500 to be of good behaviour for 12 months. On the working without permission charges she was fined $250 on each count and ordered to pay $50 court costs. On the false statement charges she was released on a recognisance, self, in the sum of $1000 to be of good behaviour for a period of two years.
14. On 14 March 1997 the applicant and Mrs Wyatt were married (T44; p 302).
15. On 11 November 1997 the Refugee Review Tribunal affirmed the decision to refuse a protection visa to Mrs Wyatt.
16. On 17 December 1998 Mrs Wyatt departed Australia and returned to the Philippines (T53; p 411).
17. On 4 March 1999 the applicant and Mrs Wyatt lodged with the Australian Embassy in Manila an application for migration to Australia (T44; p 281) and an accompanying sponsorship document (T42; p 274). The application was made on the grounds that Mrs Wyatt is the spouse of the applicant, who is a New Zealand citizen, and permanent resident of Australia. The subclass of visa applied for is 309 spouse (provisional) visa.
18. On 8 November 1999 the application for a spouse visa was rejected on character grounds (T2; p 8).
19. On 1 December 1999 the applicant applied for review by the Administrative Appeals Tribunal (T1; p 3).
CONTENTIONS
1. It is a criterion for the grant of a subclass 309 – spouse (provisional) visa that the time of the Mrs Wyatt satisfies public interest criterion 4001 (cl 309.323) of Schedule 2 to the Regulations; reg 1.03 of the Regulations).
2. Criteria 4001 of Schedule 4 to the Regulations refers to the "character test", which is set out in s 501 of the Act. Section 501 relevantly provides:(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6) A person does not pass the character test if:
…
(c) having regard to either or both of the following:the person's past and present crimina/ conduct;
the person's past and present general conduct;
the person is not of good character.
3. The Minister has issued a direction pursuant to s 499 of the Act ("the Direction) (T6; p 38). The Direction provides guidance to decision makers in making decisions to refuse or cancel a visa under s 501 of the Act. The Direction is binding to all decision makers: s 499(2A); Rokobatini v MIMA (1999) 90 FCR 583 (FC) at [17] per Whitlam and Gyles JJ.
4. The Direction consists of two parts. Part 1 provides djrections on the application of the character test. If a person does not pass the character test, decision makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them.PART ONE OF THE DIRECTION: APPLICATION OF THE CHARACTER TEST
5. In relation to s 501(6)(c) of the Act, the Direction provides that the decision maker must take into account all the relevant circumstances of the particular case (T6; para 1.7).
6. In relation to s 501 (6)(c)(i), the Direction states that the decision maker should take into consideration (T6; para 1.8):(a) the nature, severity and frequency of the offences;
(b) how long ago the offences were committed;
(c) the non-citizen's record since the offences were committed;
(d) any mitigating circumstances such as may be evident from judges , comments, parole reports and similar documents.
7. In relation to this matter, Mrs Wyatt has criminal convictions for offences against the Passport Act and the Migration Act. The respondent contends that the nature of the offences is a significant matter in considering whether Mrs Wyatt is of good character for the purposes of an application to migrate to Australia. The respondent notes that the offences were committed in 1994 and 1995 and is not aware of any further offences committed in Australia since that time. The respondent concedes that Mrs Wyatt has no criminal record in the Philippines (T44; p 312). There is no evidence available of any mitigating circumstances in relation to the offences. Accordingly, the respondent contends that Mrs Wyatt does not meet the character requirement pursuant to s 501 (6)(c)(i).
8. Further, and in the alternative, the respondent contends that Mrs Wyatt does not meet the character requirement pursuant to s 501 (6)(c)(ii).
9. In relation to s 501(6)(c)(ii), the Direction states that the decision maker should consider the following matters which will, in the absence of any countervailing factors, constitute a failure to pass the character test (T6; para 1.9):(a) whether the non-citizen has been involved in activities indicating contempt or disregard for the law or for human rights;
(b) whether the non-citizen has, in connection with any application for the grant of the visa or any kind of government benefit provided a bogus document or made a false or misleading statement;
…
The matters which may be included in matters taken into consideration under paragraph (a) include, but are not limited to, "involvement in activities such as... breaches of immigration law".
10. In this matter Mrs Wyatt has admitted that she:(a) made an application for permanent residence based on a contrived de facto relationship with Geoffrey Rowe (T16; p 150);
(b) worked without permission under the name of Mariper Aguilar at Royal Ryde Linen Service and Ryde Nursing Home during the period prior to her departure from Australia in 1993 (T 16; pp 151-152);
(c) signed a false document (passenger card) (TI6; p 156);
(d) used a false passport to gain entry to Australia (TI6; p 156);
(e) worked without permission under the name of Mariper Aguilar at Beecroft Nursing Home, Clermont Nursing Home and Whitehall Nursing Home November 1994-September 1995 (TI6; pp 162-163) and under the name of Maricar Jimenez at Mark Mayne Dry Cleaners (116; pp 163- 164);
(f) possessed a false passport in the name of Mariper Aguilar containing a false resident visa (TI6; pp 165-166);
(g) possessed of a second false passport in the name of Mariper Aguilar containing a false Australian resident visa (116; pp 167,168);
(h) used false documents to obtain a tax file number (T16; p 168);
(i) possessed a false passport in the name of Maricar Jimenez containing a false Australian resident visa (116; pp 168-169);
(j) possessed false birth certificates in the names of Marianne Bautista Aguilar and Brian Bautista Aguilar (1 16; pp 171-172);
(k) possessed false passports in the name of Ramon Bryan and Mary Jane Bryon (TI6; pp 177-178);
(l) made an application for refugee status under a false name (pp 180- 182).
11. The respondent contends that the above acts were committed as deliberate attempts to circumvent the immigration laws of Australia and indicate contempt or disregard for the law. Further, Mrs Wyatt has clearly provided both bogus documents and made false and misleading statements in connection with an application for the grant of a visa. The respondent contends that Mrs Wyatt's conduct referred to above occurred over a sustained period of time, from at least 1990 until 1995. The respondent contends that the conduct does not constitute an isolated incident of bad judgment on the part of Mrs Wyatt. Rather, the respondent contends that she engaged in a sustained attempt to evade detection and remain in Australia and work when she clearly had no right to do so. Accordingly, the respondent contends that Mrs Wyatt fails the character test pursuant to s 501(6)(c)(ii).
PART TWO OF THE DIRECTION: EXERCISE OF THE DISCRETION
12. The Direction provides that in exercising the discretion to decide whether a non-citizen who has failed the character test should nevertheless be permitted to enter or remain in Australia, the decision maker must have regard to the following primary considerations (16; para 2.3):(a) the protection of the Australian community:
(b) the expectations of the Australian community; and
(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
13. In relation to (a), the protection of the Australian community, the Direction provides that factors relevant to an assessment of the level of risk to the community include the seriousness and nature of the conduct of Mrs Wyatt, the likelihood that the conduct may be repeated (including any risk of recidivism) and whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence) (T6; para 2.5).
14. The Direction provides that the following offences are considered to be very serious: "serious crimes against the Migration Act, including, but not limited to ... applying or nominating for permanent residence on the basis of a contrived or false marriage or de facto relationship ... or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia" (T6; para 2.6). The respondent contends that Mrs Wyatt was convicted of two counts of making a false statement contrary to s 234(1)(b) of the Migration Act. The respondent also contends that Mrs Wyatt also applied for permanent residence on the basis of a contrived de facto relationship in 1990 and that she left Australia before prosecution action was taken against her for that offence.15. The respondent concedes that no further offences appear to have been committed by Mrs Wyatt since 1995. However, the respondent contends that it is open to the Tribunal to find that from September 1995 until the RR T refusal in November 1997, Mrs Wyatt has had no reason to commit further offences, as she remained in Australia legally by virtue of the ongoing application for a protection visa. The respondent therefore contends that the failure to commit further offences should be given diminished weight.
16. The respondent contends that the consideration of general deterrence in matters where applicants for visas have previously committed offences against the Migration Act should be given significant weight. The respondent contends that the Tribunal should consider this a factor which weighs against the discretion being exercised in favour of Mrs Wyatt.
17. Accordingly, the respondent contends that consideration of the protection of the Australian community would weigh against the discretion being exercised in favour of Mrs Wyatt.
18. In relation to (b), the expectations of the Australian community, the Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia (16; para 2.12). Visa refusal may be appropriate simply because the nature of the character concerns are such that the Australian community would expect that the person would not be granted a visa. In this case, the respondent contends that in light of Mrs Wyatt's past disregard for Australian laws, the Australian community would expect the Tribunal not to exercise its discretion in her favour.
19. In relation to (c), the best interests of the child, the consideration only applies if the child is less than 18 years old at the time when the decision is intended to come into effect (T6; para 2.13). The only child of Mrs Wyatt currently under 18 is Edper Brianne Aguilar (born 16 October 1982) ("the child"). Hence the respondent contends the consideration only applies if the decision is intended to come into effect before 16 October 2000.
20. The Direction relevantly provides that decision makers should have regard to (T6; para 2.16):(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship including the number and length of any separations;
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident.
21. The respondent contends that there is no evidence as to the relationship between the child and Mrs Wyatt. The respondent further contends that Mrs Wyatt could not have played a significant part in that child's upbringing, as she was absent in Australia for the bulk of the child's formative years: from October 1988 to March 1992 (child aged 6 to 10); from May 1992 to September 1993 (child aged 10 to 11); from October 1994 to December 1998 (child aged 12 to 16), The respondent contends that the child is very close to the age of 18 years and is a citizen of the Philippines. The respondent therefore contends that the child's best interests do not require that the discretion should be exercised in favour of Mrs Wyatt: cf Baldini v MlMA [2000] FCA 173; Hui v MIMA [199] FCA 985.
22. The Direction states that in addition to the primary factors, other considerations may be relevant (T6; para 2.17). It is appropriate that these may be taken into account but they be given less individual weight that the primary factors. One of those factors is "genuine marriage to ... an Australian permanent resident" and in assessing the compassionate claims of that person, a decision maker must consider whether the Australian partner knew that the non-citizen was a character concern at the time of entering into or establishing the relationship. There is currently no evidence of what the applicant's state of knowledge was at the time the relationship was entered. The respondent contends that without that evidence, the marriage is not a matter which should be given any great weight.
23. Accordingly, the respondent contends that Mrs Wyatt does not meet the character test for the purposes of s 501 of the Act and further contends that the discretion to grant her a visa should not be exercised in her favour.
The Respondent agreed at the hearing that he would not press his contentions in respect of the birth certificates and passports referred to in clauses 8(j) and 8(k) and having regard to the fact that the documents in question were photocopies of the documents in question.
Evidence was given at the hearing by the Applicant and Mrs Wyatt gave evidence by telephone link from the Philippines. Although an interpreter in the Filipino language was made available to Mrs Wyatt, it became clear during her evidence at the hearing that she was fluent in English and did not require the assistance of the interpreter. Mrs Wyatt is well-educated; she graduated from Wesleyan University in Cabanatuan City in the Philippines with a Bachelor of Science, majoring in chemistry (T44, pages 304-305).
Exhibits A2 and A3 were tendered and accepted on the basis that the relevant witnesses, Mr Domingo Bautista, Mrs Wyatt's father, and Ms Mariper Aguilar, Mrs Wyatt's daughter, were not required to give oral evidence or submit themselves to cross-examination. This evidence (which was thus accepted in full) relates to the breakdown of Mrs Wyatt's first marriage and the abusive behaviour of Mrs Wyatt's first husband, Edgardo Aguilar ("Mr Aguilar") towards Mrs Wyatt.
It was noted at an early stage of the hearing that the T Documents include the decree nisi pursuant to which Mrs Wyatt obtained a divorce, in Australia, against her first husband on 23 August 1993. Jurisdiction was obtained on the basis and footing that Mrs Wyatt was ordinarily resident in Australia. As to whether she was ordinarily resident at that time is perhaps open to question, but the Tribunal does not consider that this is an aspect which requires further consideration.
(a) The evidence given by Mrs Wyatt focussed on her reasons for wanting to come to Australia in the first place. When asked why she wanted to come here, Mrs Wyatt stated:
I decided to leave from the Philippines going to Australia because of my fear from my ex-husband who is struggling to kill me a third time and my children as well………the reason why I came to Australia …. The reason is because I'm scared from my ex husband and also I would like to – because I'm experiencing depression because of what had happened to my marriage. Somehow I have to go somewhere for my refuge (Transcript, page 44)
This may be contrasted with her explanation given at the interview at Villawood Detention Centre (T16) where she stated :
Ah, when I came – when I came to – when I stay at the Philippines to be with my family and I know that I can't cope with the expenses being a single mother well I was just – I just don't know what to do, how to deal with my financial complication with my children I – that's the time I think about it.
Mrs Wyatt said that she suffered depression because of Mr Aguilar; that she had seen doctors both in the Philippines and in Australia, and took medication.
(b) Mrs Wyatt stated that all the admissions that she made to the departmental officer on 22 September 1995 (see the first clause 8 of the Respondent's Statement of Facts and Contentions set out in paragraph 2(d) of these Reasons) were correct and true, excepting only for her admission that she had used false documents to obtain a tax file number. Rather, Mrs Wyatt said, she used an old tax file number obtained on her first visit to Australia in 1988.
(c) After arriving in Australia on the first ocassion in 1988, Mrs Wyatt decided to apply for permanent residency in 1990. Mrs Wyatt said she made the application because:
I decided to apply for permanent residency to be able to stay legally in Australia but I was advised and I decided that I applied legally using the contrived marriage. (Transcript, page 47)
Mrs Wyatt admitted that she was aware that participation in a contrived marriage for the purposes of circumventing immigration laws was illegal.
(d) While waiting for her application to be processed, Mrs Wyatt worked illegally, sending money back to the Philippines for her children. The children did not at any stage accompany her to Australia. Mrs Wyatt claimed that she had authority to work at this time; however the Tribunal was not furnished with any evidence which supported that assertion. In addition, it is noted that on Mrs Wyatt's second visit she was charged with working without authority (T35, page 253).
(e) During her first visit to Australia, Mrs Wyatt returned to the Philippines for three weeks. The purpose of this trip was to see her children and deposit money (approximately $9,000-10,000) in the bank accounts of her children and her mother. It was her intention that the money would be used for the children's education. Mrs Wyatt said that while in the Philippines, she kept a low profile to avoid detection by Mr Aguilar.
(f) Upon her return to Australia in 1992 Mrs Wyatt was arrested in late 1993 and interviewed about the contrived marriage and the false application for residency. Mrs Wyatt's visa was subsequently cancelled and she returned to the Philippines.
(g) Once back in the Philippines, Mrs Wyatt lived with her parents. She said that because she feared Mr Aguilar, she moved from place to place to avoid detection. Mr Aguilar had taken money which Mrs Wyatt had earlier deposited for her children (although the Tribunal was not told how he was able to access the relevant accounts). Threats by Mr Aguilar were reported by Mrs Wyatt to the chairman of the local community but not to the local police.
(h) "Out of desperation" (Transcript, page 52) Mrs Wyatt decided to return to Australia. She called a friend (Raymond Villamin) who said he could arrange for her to return to Australia. Mrs Wyatt re-entered Australia in 1994 under the false name of Antonette Montefalcon and used a false passport for this purpose. Mrs Wyatt lived at West Ryde before moving into a flat in Lindfield.
So that she could remain permanently in Australia a Mr John Lingham (a migration agent) assisted Mrs Wyatt with an application for a protection visa. This application was made under the false name of Antonette Montefalcon and was lodged in September 1995. The protection visa application was made on the basis that Mrs Wyatt's feared prosecution by the Filipino immigration authorities for her involvement in the production of false passports.
(j) Shortly after making the application for a protection visa, the Lindfield flat at which Mrs Wyatt then resided was raided by the Respondent in execution of a search warrant (T17). As a result of this raid, which coincided with raids of a number of other premises associated with Raymond Villamin, Mrs Wyatt was found to be in possession of a number of false passports and other documentation. Mrs Wyatt was interviewed on 22 September 1995 at Villawood Detention Centre by officers of the Respondent's department (T16). At the interview she made a number of admissions in relation to the contrived marriage, working without permission, using false names and false identification documents and providing false and misleading information to immigration officials.
(k) Following the interview Mrs Wyatt altered her protection visa application so as to reflect her correct name; at the same time she was granted a bridging visa which allowed her to work.
(l) On 17 October 1995, Mrs Wyatt's protection visa application was refused; Mrs Wyatt then made an application to the Refugee Review Tribunal ("RRT") for a review of the decision.
(m) While her appeal to the RRT was pending, Mrs Wyatt pleaded guilty to and was convicted in relation to a number of matters at St James Local Court on 12 August 1996; details are as follows:1. On or about 21 September 1995, at Sydney New South Wales, did without reasonable excuse, have in her possession a passport that had been falsified, in that she did have in her possession a Republic of Philippines passport number L028123, issued 11 July 1992 and valid until 11 July 1997, in the name "Maripar B. Agular", date of birth 8 January, bearing a photograph of the defendant.
2. On or about 21 September 1995, at Sydney, New South Wales, did without reasonable excuse, have in her possession a passport issued by or on behalf of the government of a foreign country, namely the Philippines, being a passport that had been falsified, in that she did have in her possession a Republic of the Philippines passport, K231980, issued on 11 June 1993 and valid until 11 June 1998, in the name "Maripar B Agular, date of birth 8 January 158, bearing a photograph of the defendant.
3. On or about 21 September 1995, at Sydney, New South Wales, did without reasonable excuse, have in her possession a passport issued by or on behalf of the government of a foreign country, namely the Philippines, being a passport that had been falsified, in that she did have in her possession a Republic of the Philippines passport, number K214805, issued 20 January 1993 and valid until 20 January 1998, in the name "Maricar C Jiminez", date of birth 20 March 1960, bearing a photograph of the defendant.
4. Between about 1 November 1994 and about 5 March 1995 at Sydney, New South Wales, whilst an unlawful non-citizen, did perform work in Australia for reward, in that she was employed by and in receipt of wages from the Beecroft Nursing Home in the name M Agular.
5. Between about 9 November 1994 and about 20 September 1995 at Sydney, New South Wales, whilst an unlawful non-citizen, did perform work in Australia for reward, in that she was employed by and in receipt of wages from the Clermont Nursing Home in the name of Maripar Agular.
6. Between about 12 April 1995 and about 27 September 1995 at Sydney, New South Wales, whilst and unlawful non-citizen, did perform work in Australia for reward, in that she was employed by and in receipt of wages from mark Mayne Pty Ltd Dry Cleaning in the name of Maricar Jiminez.
7. On or about 3 October 1994, at Brisbane, Queensland, did in connexion (sic) with immigration clearance, of a non-citizen into Australia, namely herself, to make an officer a statement that to her knowledge was false in a material particular, in that in an incoming passenger card she stated that her name was Antonette Montefalcon when in fact her name was Maria Perpetua Bautista.
8. On or about 16 September 1995, at Sydney, New South Wales, in an application for a visa permitting a non-citizen, namely herself, to remain in Australia, did make to an officer or a person exercising powers or performing functions under the Migration Act 1958 a statement that to her knowledge was false in a material particular, in that in an Application for a Protection Visa (866), dated 13 September 1995, she stated that her name was Antonette Montefalcon when in fact her name was Maria Perpetua Bautista.
Convicted on all 8 counts.
3 x s9A(f)(I) Passports 1938.
Sentenced to three months imprisonment to be released after serving seven days upon entering into a recognizance pursuant to s20(1)(b) Crimes Act 1914, self in $500 to be of good behaviour for a period of 12 months.
$50 court costs with six months to pay.
2 x s235(3) Migration Act 1958
Fined $250 on each count.
$50 court costs with six months to pay.
2 x s234(1)(b) Migration Act 1958
Ordered to enter into a recognizance pursuant to s20(1)(a) Crimes Act 1914, self in the sum of $1000 to be of good behaviour for a period of 2 years.
$50 court costs with six months to pay.
Section 3ZL Fingerprint Order made
(a) After Mrs Wyatt had been convicted of the offences referred to in paragraph 6(m) above, the relationship between Mrs Wyatt and the Applicant became close and the couple were married on 14 March 1997.
(b) On 11 November 1997, the RRT affirmed the decision not to grant a protection visa. The decision of the RRT (T38) explains the reasons why Mrs Wyatt's claims for refugee status were not accepted. The Tribunal considers that the RRT decision was altogether correct. These reasons are as follows:Whilst it may be the case that the Applicant is opposed to the Philippine government and opposes the corruption of officials, the Tribunal has to consider whether the Applicant has a well founded fear of persecution for a Convention reason. The Applicant admitted that she has never been involved in politics and that she has had no problems herself in the past as a result of the government or the corruption of officials. In such circumstances, where the Applicant has not suffered persecution in the past, the Tribunal is satisfied that there is no real chance that she will suffer persecution if she now returned as a result of the corruption of officials, the political system or her beliefs.
The Tribunal considers that the possibility that there will be people after her in the Philippines because of the discovery of the passport fraud to be remote. She does not know these people and the only person she dealt with is in Australia. It is twelve months since her prosecution and she has not heard from this person in this time. Given that she has not even heard from the person in Australia who knows her the Tribunal considers the possibility that there is someone, unknown to her, in the Philippines who will chase after her if she returns as remote.
In any event even if there were a person after her in the Philippines it would not be for any Convention reason but because she had been involved in a passport fraud that had been uncovered.
Finally even if the Applicant is further prosecuted by the Philippines authorities because she left the country on a false passport, such further prosecution would not be on account of any one of the Convention reasons. Rather such prosecution would be because she has committed offences in relation to the use of passports, such offences being criminal in nature.
Accordingly the Tribunal is satisfied that the Applicant does not face a real chance of persecution for a Convention reason should she now return. She therefore does not have a well-founded fear of persecution for a Convention reason.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
DECISION
The Tribunal affirms the decision not to grant a protection visa.
(c) Mrs Wyatt then applied for the Respondent's intervention under section 417 of the Act, but the Respondent declined to do so. There was of course no prospect of success given that Mrs Wyatt was not and never had been a refugee as required by the Refugees Convention.
(d) Mrs Wyatt was eventually forced to depart Australia on 17 December 1998 because she was unable to renew her bridging visa. After her return to the Philippines and on 4 March 1999, Mrs Wyatt applied for a spouse visa at the Australian embassy in Manila. Since returning to the Philippines, Mrs Wyatt has lived at her parents' home with her children.
(a) I must first determine whether Mrs Wyatt fails the character test. That test is whether, having regard to either or both her past and present conduct, she is not a person of good character. In making this determination I am bound by Direction 17 ("the Direction"), made by the Respondent under section 499(1) of the Act on 16 June 1999. Paragraphs 1.9 to 1.11 of the Direction state:
1.9 In considering whether a non-citizen is not of good character against subparagraph 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:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to :
· engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities
· continual evasion or non-payment of debt;
· continual disregard as to payments of family maintenance;
· involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; or involvement in war crimes or crimes against humanity.
(b) whether the non-citizen has, in connection with any apoplication for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d) whether the non-citizen has been removed / deported from Australia or removed / deported from another country; or
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.1.10 In addition to the above matters a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
· whether there is a pattern of conduct relating to the applicant (eg. Similar charges in the past, other criminal behaviour); and / or
· the seriousness of the offence with which the applicant has been charged; or
(b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)
(b) It is noted that Mrs Wyatt's criminal convictions are also relevant under section 501(6)(c)(i) of the Act and in this regard paragraph 1.8 of the Direction state:
1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:
(a) the nature , severity and frequency of the offence/s;
(b) how long ago the offence/s were committed;
(c) the non-citizen's record since the offence/s were committed, including:· any evidence of recidivism or continuing association with criminals;
· a pattern of similar offences; and/or
· pattern of continued or blatant disregard / contempt for the law; and
(d) any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents
(c) Mr Kessels made a number of submissions as to the application of the character test; reference is made in this context in particular to clauses 3 to 18 of the Applicant's Contentions in paragraph 2 (c) of these Reasons.
The Tribunal accepts that it should disregard the Respondent's contentions as regards false documentation referred to in first clause 8(j) and 8(k) of his Statement of Facts and Contentions (and set out in paragraph 2(d) of these Reasons). However, Mrs Wyatt was found guilty of offences under the Act; moreover and on a balance of probabilities, it seems likely that there are other charges which could have been brought under sections 234 and 235 of the Act. Mrs Wyatt worked in breach of the Act throughout the relevant period; the convictions relate to some incidents only. As to her protection visa application, the fact that it was made in a false name would appear to constitute a false and misleading statement, and her application was misleading in another sense, in that she knew that she had never been involved in any conduct which could result in her being classified as a refugee. Her alleged fear of prosecution in respect of the false passports (and the RRT doubted whether there was any real danger) was in all probability nothing more than a device to found a protection visa application and so as to gain time; much the same comment applies to subsequent applications to the RRT and the Respondent. The result of course was that she gained and was able to stay in Australia for a much longer period. It is of course true to say that Mrs Wyatt's protection visa application did not allege political activities and feared consequences. That said, however, the Tribunal considers that her protection visa application (in a false name) in the context of this matter as a whole was, regarded as a whole, false and misleading.
I accept that in considering the character test I must consider her character as a whole and weigh past bad conduct against any recent good conduct. The Tribunal does not accept that the conduct of the Applicant constituted an explanation for Mrs Wyatt's conduct; it is to be remembered that the conduct in question occurred over a long period and during two stays in Australia. Such a conclusion is moreover inconsistent with the evidence. Mrs Wyatt reported the harassment by Mr Aguilar only to the local chairman of the community and did not consider it serious enough to report it to the police. Despite statements that Mr Aguilar made threats against the three children, they have remained in the Philippines without incident. Particularly revealing is the fact that when interviewed by the Respondent's officials in 1995, following the raid on the Lindfield unit, she did not say anything about threats by Mr Aguilar. Her reasons for wanting to come to Australia were plainly economic; (see in this regard paragraph 6(a) of these Reasons). Mrs Wyatt embarked on a determined and consistent effort to stay in Australia without regard for Australian law. This can hardly be described as the behaviour of someone who is of good character. In this regard I quote from the judgement of the Full Federal Court in the Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195:
Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly.
I also refer to the decision of Deputy President McMahon of this Tribunal in Re Msumba and the Department of Immigration and Multicultural Affairs [2000] AATA 87 at paragraph 37:
While section 501 is now in a different form from that involved in previous Federal Court decisions, the essential test is the same as that enunciated in those judgements, except where inconsistent with the Minister's direction. The character test, therefore, requires an objective consideration of the applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
The Direction points to mitigating factors (in relation to criminal conduct), countervailing factors (in relation to general conduct) and evidence of recent good conduct as matters which may weigh against bad conduct sufficiently to lead to the conclusion that the person concerned in fact of good character. The Tribunal accepts that Mr Aguilar was at one time abusive towards Mrs Wyatt, but this occurred some time ago. In any event bad behaviour on the part of Mr Aguilar cannot justify the cynical and persistent manner in which Mrs Wyatt disregarded the law. Moreover, Mrs Wyatt has now lived in the Philippines since September 1998 without any threat by Mr Aguilar; the evidence (as set out previously) revealed that Mr Aguilar is now involved with another woman and that they have a child. In addition, no evidence was presented to the Tribunal of recent good conduct. Recent good conduct must be more than merely the passing of relatively short space of time without incident; it must involve positive acts which weigh against bad conduct in the past; in this regard I also agree with Deputy President McMahon who said in Re Msumba:
What is required to be identified . . is [the visa applicant's] conduct in an immigration sense.
There is no evidence of recent good conduct in an immigration sense in relation to Mrs Wyatt. Assessed objectively Mrs Wyatt does not have the enduring moral qualities of someone who is of good character.
The Applicant made a number of submissions in relation to the principle of desirability of consistency in decision-making expressed in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; (see paragraph 18 of the Applicant's Contentions). Reference was made in particular to my decisions of Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023, Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956 and Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967. While consistency in decision-making is desirable, "consistency is not preferable to justice" (per Brennan J in Re Drake (No 2) at 645). In Re Drake (No 2), Brennan J defines injustice in this context as (at 645):
. . . a disproportion between the detriment suffered by those affected by the execution of a deportation order [or, in the context of this matter, the refusal to grant a visa] and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order was affirmed.
The nature of Tribunal decision-making is such that the Tribunal must not only take into account the application of the law to the facts, but also the application of an administrative policy (which it must do in the context of the binding Direction): Re Drake (No 2) at 643. It is accepted that there will always be a fine balance between the need to do justice in the individual circumstances of the case and the need to avoid inconsistency, which Brennan J described in Re Drake (No 2) as bringing "the process of deciding into disrepute" (at 639).
Having regard to the evidence before it, the Direction and numerous prior decisions of this Tribunal, I find that Mrs Wyatt does not pass the character test. I next proceed to consider the discretion in part 2 of the Direction.
(a) The evidence given by the Applicant was relatively short. The Applicant, a New Zealand citizen who is permanently resident in Australia, has qualifications in industrial design and mechanical design and runs his own consultancy business. The Applicant is clearly an intelligent, articulate and well established man.
(b) When asked why he could not go to New Zealand and apply for a spouse visa for his wife there, the Applicant said that he had made some limited enquiries and was told that New Zealand immigration law has character requirements similar to those applicable in Australia. On the basis of these enquiries, the Applicant assumed that his wife would have no better chance of gaining entry into New Zealand. The Applicant also expressed concern as to the fact that he has not lived in New Zealand for a number of years.
At the conclusion of the hearing I agreed to a request by Mr Kessells to allow him time within which to make enquiries as to whether the Mrs Wyatt would be allowed to become resident in New Zealand together with the Applicant. An extension of time was given on the basis that if the parties reached agreement as to the further information to be provided, they could do so, or if they could not agree, yet further additional time would be allowed for separate submissions. As a result, a submission acceptable to both parties was submitted on 21 December 2000; it includes a provision of the applicable New Zealand law, reading as follows:"A.5.25 Applicants normally ineligible for a resident visa or permit unless granted a character waiver
Applicants who will not normally be issued with a residence visa or granted a residence permit, unless granted a character waiver, include any person who has been:
a. convicted at any time of any offence against the immigration citizenship or passport laws of any country" [emphasis of Mr Kessels]
The evidence provided does not include any extract from any relevant statute; nor indeed was there any evidence provided to show how, in practical terms, such a provision applies or is likely to apply. The Respondent does not concede that entry into New Zealand would not be an option for Mrs Wyatt. The Tribunal, without further evidence, is clearly unable to make any finding as to whether residence in New Zealand is an available option. The passage quoted is, in some respects, in imprecise; it is couched in the general rather than in the particular, and the Tribunal wonders why advice from a practitioner in New Zealand could not have been procured and furnished. It is perhaps conceivable that the New Zealand authorities might look favourably on the grant of a visa, given that Mrs Wyatt is married to the Applicant who is a New Zealand citizen and notwithstanding the reference in the passage quoted to "any country", Mrs Wyatt has not offended against New Zealand law. Other evidence of the Applicant (referred to below) indicated a general reluctance on his part to give this option serious consideration.
(c) The Applicant also raised a number of other grounds as to why he could not return to New Zealand. Firstly, the Applicant said that his parents (who reside in Auckland, New Zealand) had refused to meet Mrs Wyatt on the grounds of her ethnic origins, that his parents were old and that he did not want to cause a rift within his family; the Applicant referred to a background of poor family relations, but did not detail them. Secondly, the Applicant said that to move to New Zealand (assuming that his wife could gain entry) would require him to wind down his business in Australia and find employment or set up another business in New Zealand. The Applicant also referred to the weak state of the New Zealand economy.
As to the first ground, the Tribunal does not accept that a man of the Applicant's age cannot return to his home country because this may upset his parents. Poor relationships between family members, particularly where in-laws disapprove of a marriage choice, are not uncommon and there is no reason why the Applicant cannot reside in another city in New Zealand or, for that matter, in another suburb of Auckland. As to the second ground, the Applicant is an educated, articulate and skilled man who has succeeded in Australia, and would presumably have a reasonable prospect of succeeding in his home country, New Zealand.
(d) The Applicant was asked about the possibility of him moving to the Philippines to live with his wife. He expressed a number of concerns in this regard. He could not speak the local language (Tagalog) and said that there is 60% unemployment in the area where his wife lives. The Applicant also expressed concern as to Mr Aguilar. The Applicant suggested that Mr Aguilar might seek to make a claim on farm property belonging to Mrs Wyatt in the Philippines on the basis that they (Mr Aguilar and Mrs Wyatt) are not divorced so far as the law of the Philippines is concerned. The Applicant also talked of the possible violence by Mr Aguilar against him on the basis that "life is cheap in the Philippines". The Tribunal doubts whether this is a real possibility. Mr Aguilar was abusive towards Mrs Wyatt, as the evidence of her father and daughter establishes; but Mr Aguilar has not sought contact with her for some time even though she has been back in the Philippines since 1998. There was no evidence as to the threats by Mr Aguilar against the Applicant and Mr Aguilar has, according to the evidence before the Tribunal, formed a relationship with another woman, with whom he has a child. The Tribunal considers that the allegations of the Applicant as regards Mr Aguilar are likely to have been greatly exaggerated.
(e) The Applicant also said that he would not find it easy to obtain work in the Philippines; he said that his age would be against him. However, the Applicant does have specialised skills. The Tribunal accepts in any event that in practical terms a move to New Zealand is a better option than one to the Philippines.
(f) The Applicant contends that he has formed a close relationship with Mrs Wyatt's children. Apart from the fact that they are all over the age of 18, this contention must be open to considerable doubt, given that he had very limited contact with them, only when he visited Mrs Wyatt in the Philippines. The three children of Mrs Wyatt have never been to Australia, notwithstanding the length of time spent by Mrs Wyatt in this country.
(g) Under cross-examination, the Applicant was asked about his knowledge of his wife's transgressions of the Act, and of her convictions. Mrs Wyatt initially told the Applicant that she had a difficulty but it took a few weeks to get the full story out of her. She told the Applicant that she had met a migration agent (Pablo Lapa); he had played a trick on her, as a result of which she became involved in an arranged marriage. At this stage, the Applicant says, he was not very close to his wife and did not wish to "pry" in to her personal affairs. The Applicant said that he was aware that Mrs Wyatt used false names, but was not sure about the contrived marriage. He remembers Mrs Wyatt consulted a lawyer and she was told that if she got married it may delay her deportation.
(h) The fact that the Applicant visited Mrs Wyatt in Villawood Detention Centre as early as 1993 is a clear indication of the fact that not only was the Applicant aware of the Mrs Wyatt's difficulties, but also that he was aware of how serious they were. Shortly after visiting her in the detention centre, she returned to the Philippines (see clauses 9-13 of Exhibit A4 set out at paragraph 2(b) of these Reasons).
Upon Mrs Wyatt's return to Australia in 1994 under the false name "Antonette Montefalcon" the Applicant and Mrs Wyatt resumed contact with one another. The Applicant was presented with further evidence of his wife's transgressions. The Applicant took the false passport (which used the name Antonette Montefalcon) from Mrs Wyatt's handbag. When he asked for an explanation Mrs Wyatt told him that she had been provided with the passport by someone in Manila. The Applicant said that he tried to persuade Mrs Wyatt to do something about it. He "foresaw an illegal immigrant and a woman on her own having a great many problems" (Transcript, page 41).
(j) The Applicant was also aware that Mrs Wyatt had seen an immigration agent and had made applications to stay in Australia; however he did not know the nature of the application (ie. that it was for a protection visa).
(k) When Mrs Wyatt was charged with eight counts of offences under the Passports Act 1938 and the Act, the Applicant did not attend court because he "didn't fully realise the extent of what had happened". (Transcript, page 41).
(l) While Mrs Wyatt was in detention she and the Applicant became close and discussed marriage. The Applicant said that he was under the impression that once he and Mrs Wyatt were married there would be no further difficulty. He did not seek legal advice, however, relying for this purpose on advice given by Mr Lingham, Mrs Wyatt's migration agent. (Mr Lingham was not called to give evidence before the Tribunal, and the Tribunal does not know what advice was in fact given by him.)
I next set out clauses 2.1 to 2.17 of the Direction, relating to the exercise of the discretion (edited to exclude those clauses that are not relevant in this matter):
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when 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. The primary considerations are set out at paragraphs 2.3 -2.16 and other considerations are set out at paragraphs 2.17- 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 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 members of the community;
(b ) the expectations of the Australian community; and
(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.Protection of the Australian Community
2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially a risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
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 the 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:(a)…;
(b) organised criminal activity resulting in a conviction in Australia or elsewhere;
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
………………………………2.7 It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community.
Decision-makers should have due regard to the Government's view in this respect, including:(a) the extent of the person's criminal record, including the number and, nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b) the repugnance of the crime:
crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.2.8 When exercising discretion, decision-makers must also take the following factors into account as relevant considerations:
(a) any relevant factors provided by the non-citizen as mitigating factors;
(b) the offence is not classified as an offence in Australia:for example, a non-citizen who has been subjected to imprisonment as a result of political, religious or ethnic persecution may fail the substantial criminal record component of the Character Test. However, discretion may be exercised to grant the visa permitting the non-citizen to enter or stay;
(c) a lighter sentence would be incurred in Australia for a similar offence; or
(d) the non-citizen has been pardoned:Note in some jurisdictions "pardons" may only have the status of spent convictions legislation in Australia.
2.9 …
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. In particular, the following factors will be relevant to the assessment:(a) a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b) a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.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 visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. 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 that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect
The best interests of the child
2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.
………………………….
OTHER CONSIDERATlONS
2.17 When 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 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;
(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, 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 or 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 dependant 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 outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade all outstanding legal matter);
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or 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 cancellation provisions at section 501.
(a) Having regard in particular to clause 2.6(c) of the Direction, I must regard Mrs Wyatt's crimes as serious. Moreover, the fact that the maximum sentences were not imposed on her is not the point. I must have regard to the sentences which could have been imposed, for breaches of sections 234 and 235 of the Act.
(b) The risk of recidivism is remote; however, it is noted that the systematic nature of Mrs Wyatt's conduct does indicate a willingness to break the law in certain situations.
(c) Deterrence is certainly relevant in this case. I agree with the decision of Deputy President Chappell in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480, who said at paragraph 84 :The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.
I refer in this context to my decision in Re Golding at paragraph 11(i) where I said:
(i) Clause 2.5(c) relates to the question of deterrence. Mr Amble took issue with a number of recent decisions of the Tribunal which contain statements to the effect that a person who persistently offends against the Act should not be rewarded by the grant of a visa. I note that in this context, that I agree with the decision of Deputy President Chappell in Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790 and quote paragraphs 44 and 45 as follows:
44. I turn now to the balancing process which must be carried out in regard to the exercise of discretion. In all cases of this type, where a decision can have such a direct impact upon people's lives this balancing process is not an easy one. The Tribunal certainly has some sympathy for the situation in which the review applicant, Mr Gawronski, An Australian citizen, now finds himself. In regard, however to the primary considerations relevant to this case – the protection of the Australian community and the expectations of that community – the Tribunal is firmly of the view that this is a case where very significant weight should be attached to the issue of general deterrence. Ms Gawronski's general conduct must be viewed in the context of the convincing and authoritative evidence provided in Ms Reay-Young's statement about the pervasive nature of the false claims made by Filipino citizens for protection visas in order to allow them to remain in Australia for economic and allied reasons. The Tribunal has already expressed the opinion that Ms Gawronski was not an innocent victim caught up in immigration malpractice but was rather a willing recipient of advise and assistance that allowed her to fulfil her ambitions of working for a number of years in Australia.
45. The Tribunal has no doubt that it would be a legitimate expectation on the part of the Australian community that Ms Gawronski should not be rewarded for that conduct. This is especially the case when she and her advisers have utilised the international humanitarian procedures established under the Convention and the Protocols relating to the Status of Refugees (otherwise known as the Refugee Convention).
It is also likely that the Australian community would expect non-citizens such as Mrs Wyatt to obey the law. In this regard, I refer to the decision of Deputy President McMahon in Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, in which he said at paragraph 26:
As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled. Ms Lumagbas made a false application and compounded this by failing to notify the Department or other parties of this fact, despite having had ample opportunity to do so. The groundless application was considered and pursued up to the level of personal intervention by the Minister. Knowing that there was no basis for this course of conduct, Ms Lumagbas showed a complete disregard for Australia's migration laws. All this was done for no reason other than that she wished to be able to work in this country and was looking for short cuts to that goal.
The interests of Mrs Wyatt's children are not relevant in regarding the primary considerations because they are all over 18 years of age.
Other considerations:
(a) It was not contested during the hearing, and the Tribunal does not doubt, that the marriage between Mrs Wyatt and the Applicant is genuine. However, despite the genuineness of their marriage the evidence indicates that the Applicant was aware or became aware of the immigration difficulties in which Mrs Wyatt had been involved. In this regard I refer to the decision of Deputy President McMahon in Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443, in which he said at paragraph 35:[The visa applicant's husband] may not have been privy to the acts of deception associated with the protection visa application. However, he certainly knew of them before he proposed marriage to Ms Dalilis in June 1998. He certainly knew when she left Australia in August 1998 that it was under compulsion and that she could well have difficulty in returning. He certainly knew of those difficulties when he went to the Philippines (his first journey outside Australia) in January 1999 for the purpose of marrying her. Mr Dumbrell may not have acted in the same way that other men in a similar situation would have acted. Nevertheless he is an adult, an intelligent and articulate man and one who must take responsibility for his own actions. Having determined to embark on a permanent relationship with full knowledge of the possible consequences, he cannot now be heard to seek the exercise of discretion in his favour on hardship grounds.
(b) There is little doubt that each of Mrs Wyatt and the Applicant will suffer hardship if the visa is refused. However, neither the Applicant nor Mrs Wyatt appear to be dependent on one another in a financial sense. The Applicant does not appear to have any close family in Australia and it would seem that it is not impossible for him to move to another country; perhaps New Zealand is the most likely and practical solution. The Applicant has the financial resources to travel to the Philippines. All of Mrs Wyatt's family live in the Philippines; her children are well established there and Mrs Wyatt has the support of her parents. As already noted, the Tribunal was not furnished with sufficient evidence to enable it to form a view as to whether Mrs Wyatt could gain entry into New Zealand under New Zealand immigration law; however, this is an avenue which may be open and the Applicant's failure to explore this option to date may be due to the fact that he is (as set out previously in these Reasons) reluctant to leave Australia.
The acts of Mrs Wyatt were deliberate in their attempt to circumvent the immigration laws of Australia and they indicate a contempt and disregard for the law. This occurred not once but twice, in that having come to Australia and contracted a contrived marriage and having been forced to return to the Philippines, Mrs Wyatt returned under a false name and using a false passport. In the absence of countervailing factors such conduct cannot be tolerated. In this regard I refer to the decision of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 in which he said at paragraph 47:
These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.
My decision (affirming the Respondent's decision) is, in summary, as follows:
(i) Mrs Wyatt was convicted of breaches of the Act and on a balance of probabilities was guilty of a number of others. The sentences which could have been imposed are such that she fails the character test, there being no evidence of countervailing good conduct.
(ii) In considering discretion, there are no primary considerations favouring Mrs Wyatt. Contentions that Mrs Wyatt's children (who are all over 18) are close to the Applicant cannot be accepted. (Nor can it be accepted that Mr Aguilar is still a threat to the Applicant or Mrs Wyatt.)
(iii) The Applicant knew of Mrs Wyatt's difficulties and married her nevertheless. He may be able to re-establish himself in New Zealand. I should make it clear that my decision would not alter even if there was clear evidence (and there was not) that he could not do so.
In the circumstances the decision under review is affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block.
Signed: ...........[sgd Marcus Ryan].................................
AssociateDate of Hearing 18 December 2000
Date of Decision 22 January 2001
Solicitor for the Applicant Mr Ron KesselsSolicitor for the Respondent Ms Jodie Maurer, instructed by
Australian Government Solicitor
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