Yabut and Minister for Immigration and Multicultural Affairs
[2000] AATA 540
•3 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 540
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/11
GENERAL ADMINISTRATIVE DIVISION )
Re BERYL YABUT
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr B.J. McMahon (Deputy President)
Date03 July 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
BJ McMahon
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP - spouse visa – refusal on character grounds – whether visa applicant failed to meet the character test – use of false identity - false protection visa application – disregard for Australia's immigration laws – no exercise of residual discretion.
Migration Act 1958 – ss 499, 501
REASONS FOR DECISION
Mr B.J. McMahon (Deputy President)
This is an application to review a refusal to grant a spouse visa to Mr Bobby Yabut, the personal partner of the above applicant. The visa was refused on grounds set out in paragraph 501(6)(c)(ii) of the Migration Act 1958. Mr Yabut was said not to meet the character test set out in that subsection because of his past and general conduct. Mr Yabut knew of this hearing and when it was to be held. Mrs Yabut gave evidence that he had been in correspondence with her on the subject. Nevertheless, he chose not to offer any further evidence either in writing or by telephone. The following facts, therefore, have been taken from the section 37 documents and from Mrs Yabut's evidence. I understand that there is no real dispute about any of these facts. The question to be decided is what is the preferable decision having regard to these facts.
Mr Yabut was born in the Philippines on 20 August 1957. He was educated to university standard in Manila, graduating in 1978 with a degree of Bachelor of Science in Business Administration – Management. He was married to Consuelo Manalo Yabut on 26 May 1976. Although they separated in 1980, the present applicant is not aware whether this was followed by a divorce. There were two children of that marriage, namely Beverly (born 3 April 1977) and Carolyn (born 14 July 1978). Carolyn has a son (Cedric) born on 2 March 1994. Both Beverly and Carolyn were educated to university standard at the expense of the mother of Mr Yabut, who now lives in the United States of America.
Mr Yabut has a third daughter, Beatrice, born 24 January 1989, from a relationship with her mother Esperanza. The evidence was, however, that he has little to do with Beatrice, who lives in the provinces with her mother, and he has not been involved in her upbringing.
In 1990 or 1991, Mr Yabut applied for a visitor's visa to Australia. That application was refused. Unfortunately, Departmental records of this application have not been kept and were not available at the hearing. Mr Yabut has a sister living in Victoria with whom he does not have a great deal of contact. If, however, the application was simply for a visitor's visa to allow him to see her, it would have been quite unusual for the application to be refused if the circumstances were otherwise unremarkable. One is left wondering what it was about this application that made Mr Yabut an unacceptable visitor to this country. Mr Yabut apparently was convinced that this refusal would preclude any subsequent application by him to enter this country legally.
Whatever the reason, he obtained a false passport describing himself as Armando Z Samson and giving a false date of birth. The agent in Manila who provided the passport also arranged for a visitor's visa to be endorsed. This documentation was then used to enable him to travel to Australia on 21 May 1991. He has admitted that the false name and false date of birth (8 January 1954) were used so that he might be successful with his application to enter. Entry was permitted as the Department was not aware at the time of Mr Yabut's real identity, nor of the fact that he had previously been refused a visa under his real name.
When the six months visitor's visa expired, he applied for refugee status on 20 November 1991. In that application he stated that Armando Samson was an alias he had used. In answer to the question in his application form (then described as an Application for Refugee Status in Australia) he said:
"I was hunted and persecuted because of my membership with NPA. I was tortured in December '85 at Camp Krame in Quezon City. The military (Metrocom) interrogated me for three weeks non stop."
He was then asked in the form to describe his membership of or association with any relevant organisation. He answered:
"First I joined the Kabataang Makabayan (KM) in 1977 while I was in the university. Then in 1983 I joined the NPA in Pampanga under Commander Levy (Renato Mallari). I left in March 86 when Marcos finally departed our country but rejoined again in Sept 1990 after I proved that this new government is no different from Marcos'. We were about 2,000 in my membership at my last command. Our objective was to eradicate the cronies of our government who are making our people suffer. We wanted a true government for the poor people and not be corrupted by any government officials. Yes I participated in violence against the military. I was known and recognised in Pampanga province.
He added in answer to another question:
"I was tortured, interrogated in December 1985 because one of my captured comrades dobbed me. I was arrested at my home by the military."
Mr Yabut signed a statutory declaration at the end of the form attesting the truth of all these statements.
In an initial assessment, an officer of the Department determined that, as Mr Yabut had not made any claims of persecution since 1985 when President Marcos was replaced by President Aquino, Mr Yabut had not established a claim of substance in relation to his refugee status. He was then interviewed by a delegate. From notes made by the delegate during the course of the interview it was clear that Mr Yabut had paid 5,000 pesos for a passport in the name of Armando Samson and that he knew a label for a visa to Australia in that name was included in the document.
The application for refugee status was refused on 27 July 1993. On 31 August 1993 he applied to the Refugee Review Tribunal for review of the delegate's decision. In doing so, he again asserted his claims to have been a member of the NPA. On 9 January 1995, the Refugee Review Tribunal affirmed the delegate's decision, doubting the veracity of Mr Yabut's claims but finding that, even with the benefit of the doubt, he had not established refugee status in a convention sense.
In connection with his next application for a visa, he was later interviewed by a member of ASIO and told that person that he had never been a member of the NPA. In an interview in Manila on 6 July 1999, in connection with present application, he said that he had found out that he could apply for a refugee visa through talking with his sister in Melbourne who introduced him to a migration agent named "Abel". Mr Yabut told the interviewer that he had paid Mr Abel $3,000 up front when Abel had shown him the application form and asked him to sign it. He asserted that Mr Abel had filled out the details. Although he told the interviewer that he had not read what he had signed, I do not accept this. Mr Yabut is an educated man. He knew what was in the form because he repeated it at other interviews and reasserted the story during the course of his appeal to the Refugee Review Tribunal.
He agreed at the July 1999 interview that he had repeated this lie. He also admitted that "what was written on the form was a lie". He had approached another migration agent, Mr Diaz, to handle the appeal because he did not know Mr Abel's whereabouts. About this time, a new class of visa called a special entry permit (class 816 or 818) came into effect. Mr Diaz was therefore instructed to prepare Mr Yabut's third application to the Australian authorities for permission to settle in this country. He paid Mr Diaz $2,500 in instalments. If this third application had not been made, the rejection of his appeal to the Refugee Review Tribunal would have resulted in his supervised departure from Australia. By making his third application, he intended to prolong his stay for as long as it took to deal with that application.
In that application, he stated that his former alias was "Armando Ramos". In correspondence, Mr Diaz corrected the reference to "Ramos" saying that the name "Samson" had been intended.
The application was rejected. In order to become entitled to a special entry permit, it was necessary that the applicant show that he had been granted a visa overseas before 12 March 1992. The delegate found that the forged visa issued in the name of Armando Samson did not fulfil that criterion. He said:
"I accept that the applicant held a fraudulently obtained or manipulated passport which contained the visa label and that he travelled to and entered Australia using that visa label, but it does not necessarily follow that he was granted a visa."
A decision refusing the visa was given on 14 March 1996.
Mr Yabut then appealed to the then Migration Internal Review Office, where the decision was affirmed for substantially the same reasons as those given by the delegate. From that decision, he appealed a second time to the Immigration Review Tribunal on 10 July 1998. That Tribunal affirmed the existing decisions on 1 March 1999 for much the same reasons.
He had now been in Australia since 21 May 1991. For some seven years he had attempted one way or another to validate his presence in this country. He had not received one successful decision. The fifth unsuccessful decision on 1 March 1999 meant that all avenues available to him to prolong his stay had been unsuccessfully explored. He was therefore obliged to leave the country. He returned to Manila on 30 April 1999.
In the middle of the appeal processes for his special entry permit, he met Beryl Yabut at a party in August 1996. The following month she moved in to his "granny flat" and began a relationship with him. She did not know about his immigration problems at first. However, as the relationship progressed, he told her more and more about his problems. By 1997, she believed that she knew all about his past history, including the false passport and the false statements made to seek refugee status. She said in evidence that Mr Yabut did not talk much about his immigration status as he did not wish to involve her and did not want to worry her. Their relationship progressed to the extent that Mrs Yabut changed her surname to his in 1998.
By the time Mr Yabut was obliged to leave Australia in April 1999, she had been prepared for his departure and was not really surprised that he had to leave. She had previously been with him to Mr Diaz to see whether he could apply for a spouse visa. Mr Diaz told her, however, that as Mr Yabut had another visa application on foot at the time, it was not possible to switch to a spouse visa application. It was some time after this interview with Mr Diaz that Mrs Yabut changed her name.
The present application for a spouse visa is the fourth application Mr Yabut has made, excluding appeals. Mrs Yabut travelled to Manila in connection with this application and was interviewed separately with Mr Yabut on 6 July 1999. Although the interviewing officers were satisfied that the relationship between them was genuine, the visa was refused on the grounds that Mr Yabut did not pass the character test. On her return to Australia, Mrs Yabut brought this application to review that decision.
Where a visa application has been refused under section 501, I am bound to have regard to a direction given by the Minister under section 499. That sets out the matters to which I must pay regard in assessing the visa applicant's general conduct. Relevantly in the present circumstances, I am to determine "whether the non-citizen has in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement".
There can be no doubt (and indeed Mr Yabut has admitted) that he travelled on a passport in a false name with a false date of birth for the purpose of circumventing an earlier refusal of a visitor's visa to Australia. He has also admitted that he repeatedly made misleading and false statements in his application for refugee status, in his interview with a delegate of the Minister in relation to his application for refugee status, in his application for an appeal to the Refugee Review Tribunal and in an interview with a member that Tribunal. He has also relied upon his false claims to that Tribunal as a basis upon which he could apply for a class 816/818 visa so that he could remain eligible for bridging visas while that application was pursued without success to review by two review authorities.
The claims made by Mr Yabut were false and deceptive and were made deliberately. They indicate a contempt or disregard for the law and indicate facts which, if proved in connection with a charge, could lead to a conviction and a jail sentence of more than 12 months. In my view, there can be no doubt that Mr Yabut does not pass the character test. The only matter for consideration is whether the residual discretion should be exercised in his favour.
The same Ministerial direction provides criteria to be observed in the exercise of that discretion. The three primary considerations are the protection of the Australian community, the expectations of the Australian community and the best interests of any relevant child.
In considering the protection of the Australian community, I am to have regard to the seriousness and nature of Mr Yabut's conduct. The Ministerial direction provides that the Government regards as very serious:
"Serious crimes against the Migration Act1958 including, but not limited to, 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."
Mr Yabut's conduct clearly falls within the last sentence of the above description of serious misconduct. His false passports, his false statements and his pursuit and repetition of the statements amount not only to misconduct but, if proved, to criminal conduct carrying a liability to a custodial sentence. It is an expectation of the Australian community that non-citizens will obey Australian laws while in Australia. Mr Yabut has disregarded these laws. The expectations of the Australian community would not be met if his visa application were granted.
Neither Beverly nor Carolyn are children for the purpose of the exercise of the discretion because of their age. Indeed, Carolyn is herself a mother. While Beatrice, Mr Yabut's third child is under 18 years of age, the evidence is that he played no real parental role in her upbringing and her best interests do not require that the discretion should be exercised in his favour.
I am also to have regard to the other considerations set out in paragraph 2.17 of the Ministerial direction. There is no evidence of any business or other ties between Mr Yabut and the Australian community, except for the presence of his sister and except for his relationship with his personal partner, Mrs Yabut. Her circumstances are those most affected. They are both emotional and financial.
She was divorced from her first husband some years ago. Her 16 year old son lives with him in Queensland. It is necessary for Mrs Yabut to send money for his support as her former husband is unemployed. Her second husband divorced her and returned to Malaysia. According to the record of the interview in Manila, she has five children but only one of them was mentioned in evidence before me. That child does not appear to be affected in any way by the success or failure of Mr Yabut's visa application. Since Mr Yabut returned to Manila, Mrs Yabut said "I don't have a life. I don't go out". She said that she still loves him and keeps in touch with him by mail. She said "He was the best thing that has happened to me". She realises that Mr Yabut has made mistakes but she believes that "He did it for his children. He was never in any trouble in Australia".
Mrs Yabut also says that she suffers financial difficulties as a result of Mr Yabut's failure to gain entry. Although I readily agree that she has financial problems, it is by no means apparent that they would resolved by the granting of the visa application. When Mr Yabut lived with her in the "granny flat" he worked as a factory hand. He is presently unemployed. He lives in a large house in Manila with his sisters, cousins and daughters, who were children of Consuelo.
Mrs Yabut works as a domestic at Blacktown Hospital. She still lives in the "granny flat" for which she pays rent. She finds it difficult to survive financially. She has to catch a taxi to work, whereas previously, Mr Yabut used to drive her. She has been left with payment of bills for furniture which they bought together. She has had the telephone cut off because she was unable to pay the account. She borrowed money from her credit union in order to travel to the Philippines for the interview. She has to pay off this loan at the rate of $50 per fortnight. She pays for the support of her son because his father does not work.
The money that was borrowed from the credit union was used partly to pay for her airfares and sustenance in Manila. The balance she gave to Mr Yabut. In addition, she said that she sends him $50 per fortnight "when I can". They used to telephone each other. Financial circumstances now compel merely an exchange of cards.
It is hard to see how the degree of Mrs Yabut's financial hardship could be alleviated by the grant of the spouse visa. I accept, however, that she will continue to be emotionally distressed if it is refused. It has to be said, however, that by the time she made a conscious decision to continue the relationship in 1997, she was fully aware of Mr Yabut's past immigration history and the risky future which he faced in this country. Nonetheless she continued to strengthen the relationship by changing her name in 1998. Any degree of emotional hardship must therefore be seen as a risk which she squarely faced and undertook as a responsible adult.
There are no other considerations of which I am aware which should affect the exercise of the discretion in Mr Yabut's favour. The only adverse effects to which my attention has been drawn are greatly outweighed by the public considerations behind a finding of a failure to pass the character test and to meet the requirements of protection of the Australian community.
The decision under review will therefore be affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 26 June 2000
Date of Decision 03 July 2000
Representative for the Applicant Self-represented
Representative for the Respondent Andrew Pearson (Australian Government Solicitor)
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