IMMIGRATION - spouse visa - refusal on character grounds - where the visa applicant failed to meet the character test - false protection visa application - disregard for Australia's immigration laws - desirability of consistency in tribunal decision-making

Migration Act 1958 - sections 5, 234, 235, 351, 417, 499, 501

Re Drake and Minister for Immigration and Multicultural Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Re Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443

Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554

Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790

Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956

Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575

Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480

Re Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731

1. (a) This is an application for the review of a decision by a delegate of the Respondent made on 11 January 2000, refusing an application for a spouse visa by Mrs Carmelita Peljha (nee Alberto) and in respect of which the Applicant, her husband, was the sponsor.

(b) The Applicant was represented by Mr T A Kolomyjec of Counsel, instructed by Virginia Odtojan & Associates, solicitors, while Mr Matt Grey 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 Character reference dated 21 October 2000, issued by Father Benjamin Macajes, Filipino Chaplain, Divine Word Missionaries, Office of the Filipino Catholic Chaplaincy in Australia.

Exhibit A2 Statement by the Applicant dated 24 October 2000.

2. As I did in the decision in Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956 (a decision handed down recently, in a case heard in the same week as this case was heard, and where the fact situation was, to some extent, similar) I commence by including a number of extracts from the documents and which serve as background to the matter:

(a) The parties were agreed that the contents of the Respondent's Statement of Facts and Contentions as regards the Law are correct. That part of the Respondent's Statement of Facts and Contentions is thus reproduced in these reasons as follows:

15. Pursuant to subclause 309.225 of the Migration (1994) Regulations an applicant for a Spouse Visa must satisfy public interest criterion 4001 at the time of the decision. That criterion in turn requires an applicant to satisfy the Minister he or she passes the Character test.

16. Section 501(1) of the Act states as follows:

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.

NOTE: Character test is defined by subsection (6).

Relevantly, Section 501(6)(c) of the Act states as follows:

For the purposes of this section, 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:

17. The question of whether a person is of good character is answered by reference to the ministerial direction on the Character test.

18. Section 499(1) of the Act states as follows:

The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

19. Direction No. 17 of 1999 ("Direction 17") was made pursuant to Section 499 of the Act on 17 June 1999. Direction 17 provides guidance to decision makers, in making decisions to either refuse or to cancel a visa under Section 501 of the Act. Direction 17 is binding on all decision makers, including merits review tribunals such as the AAT

20. Direction 17 consists of two parts. Part 1 provides directions on the application of the Character test. Non-citizens who are being considered under Section 501 must satisfy the decision maker that they pass the Character test. If a non-citizen does not pass the Character test, decision makers are then to exercise discretion on whether to refuse or to cancel a visa. In doing so, decision makers are to take into account both primary and other consideration. Part 2 provides directions as to what those considerations are, and what weight is to be given to them.

21. Before finding that a non-citizen is not of good character due to their past or present general conduct (Section 501(6)(c)(ii)), Part 1 of Direction 17 requires a decision maker to have regard to the all the relevant factors of the case. This includes evidence of recent good character, but it also specifically includes inter alia the following:

(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 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 by subsection 5(1) of the Act.

22. Under Part 2 of Direction 17, if a non-citizen does not pass the Character test, decision makers must have regard to the following primary considerations when exercising the discretion on whether a non-citizen should be permitted to enter or to remain in Australia:

(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 the children.

23. In relation to the primary consideration of the protection of the Australian community, the following factors are relevant:

(a) the seriousness and the nature of the conduct;

(b) the likelihood that the conduct will be repeated (including any risk recidivism); and

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Relevantly, offences under the Act, including the making of a false or misleading statement in connection with an entry or stay in Australia is considered to be a serious offence. The general deterrence factor also operates to deter others from committing similar offences.

24. In relation to the primary consideration of the expectation of the Australian community, the non-citizen is expected to obey Australia's laws while in Australia.

25. In relation to the best interests of the child, this primary consideration comes into effect if the child would be less than 18 years of age when the decision is intended to come into effect. This primary consideration however is not applicable to this case.

26. When considering whether to refuse a visa, other factors, although not primary considerations, may be relevant. These are to be given less weight than primary considerations, but they may include:

(a) the disruption to the non-citizen' s family, business and any other ties to the Australian Community;

(b) the genuine marriage to, de facto or interdependent relationship with an Australian citizen or permanent resident;

(c) the degree of hardship which would be caused to immediate family members lawful resident in Australia;

(d) the 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 mater, any cost or bilateral implications of such a breach;

(g) the nature and seriousness of the offence(s) or alleged offence(s);

(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 or stay in Australia, including any significant compassionate circumstance; and;

(k) the fact that the non-citizen has been formally advised in the past by an officer of the Department of Immigration & 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.

27. The decision maker is also required to consider whether there are any international obligations relevant to the non-citizen. Such obligations may arise, for instance, pursuant to the International Convention on Civil & Political Rights, the Convention Against Torture and the Refugees Convention.

(b) The Respondent's Statement of Facts and Contentions also contains its contentions as to the Facts. The evidence revealed that the Facts, as contained in that Statement, were correct and they too are repeated in these Reasons as follows:

1. Ms Peljha (nee Alberto) is a Filipino citizen. She first arrived in Australia on 18 August 1996 on a one month Visitor's Visa. (T36, p.221)

2. On 30 August 1996 Ms Peljha lodged an application for a Protection Visa with the Department of Immigration & Multicultural Affairs ("DIMA"). (T6, pp.95-123)

3. In that application, Ms Peljha claimed that she had been receiving death threats from the New People's Army ("NPA"). In particular, Ms Peljha claimed that she was receiving threats from a NPA member whose romantic advances she had rejected. She said that she feared that she would be raped, tortured or killed if she returned to the Philippines. (T6, pp.112-115)

4. Ms Peljha's claims of persecution from the NPA were untrue. (This was unknown by DIMA at the time.)

5. On 11 January 1997 a DIMA delegate refused Ms Peljha's application for a Protection Visa. The delegate found that the difficulties that Ms Peljha had allegedly suffered (from her suitor) had no nexus with any of the grounds of the Refugees Convention. It also found that the chance of her being persecuted by the NPA on the ground of an imputed political opinion was remote. (T9, pp.131-133)

6. On 10 February 1997 Ms Peljha applied to the Refugee Review Tribunal ("RRT") for a review of the delegate's decision. Ms Peljha repeated her claims of persecution and at no stage did she alert the RRT to the fact that those claims were untrue. The RRT refused Ms Peljha a Protection Visa on 30 June 1997, finding that there was nothing to show that she was being targeted for a Convention reason. (T10, pp.134-140)

7. On 22 July 1997 Ms Peljha's migration agent wrote to the Minister for Immigration & Multicultural Affairs ("the Minister") seeking his assistance under Section 417 of the Migration Act ("the Act"). (T14, p.149) By a letter dated 17 April 1998, Ms Peljha was advised that the Minister had declined to exercise his discretion under the Act. (T30, p.207) From 5 August 1997 until 14 December 1997, Ms Peljha held a series of Bridging Visas, Class "E" . The basic purpose of these visas was to keep Ms Peljha's immigration status legal while the Minister was considering her request to intervene pursuant to Section 417 of the Act. (T15, pp.150-151; T23, pp.164-165)

8. On 15 December 1997 Ms Peljha applied to remain in Australia permanently due to a change in circumstances. (T26, pp.171-198) That application was refused by the delegate on 29 January 1998 as having being made out of time. (T29, pp.202-206) An appeal was made to the Immigration Review Tribunal, but on 19 March 1999 it was also unsuccessful. (T31, pp.209-214)

9. On 16 April 1999 Ms Peljha wrote to tile Minister requesting that he consider exercising his personal discretion in her favour. The humanitarian grounds relied upon in that fresh request were partly the fact that Ms Peljha had been in Australia for almost 3 years. Ms Peljha did not inform the Minister that the reason she had been in Australia for this amount of time was mainly due to the fact of her having lodged a bogus Protection Visa application. (T32, pp.215-216)

10. On 27 April 1999 Ms Peljha married Mr Peljha ("the applicant"). (T40, p.226)

11. From 21 May 1999 until 4 June 1999 Ms Peljha again held a Bridging Visa, Class "E". The basic purpose of which was to keep Ms Peljha's immigration status legal while she was making arrangements to leave Australia. (T39, p.224)

12. On 15 June 1999 Ms Peljha lodged an application for a Spouse Visa. Ms Peljha was sponsored by the applicant. (T40, pp.225-258) On 17 June 1999 Ms Peljha left Australia for the Philippines. (T41, p.259)

13. On 23 June 1999 and 3 September 1999 Ms Peljha was interviewed at the Australian Embassy in Manila about her Spouse Visa application. During the course of those interviews she admitted that she had provided false information in connection with her Protection Visa application. Ms Peljha also said that her solicitor had made up the story about the NPA and had helped her to complete the Protection Visa application form. Ms Peljha said that she knew that the story was untrue. She also said that she went through the (Protection Visa) process because she wanted to stay in Australia and work (T45, pp.268-270)

14. On 11 January 2000 Ms Peljha's application for a Spouse Visa was rejected by the Minister's delegate, Ms Sally Reay-Young on the grounds that she was not of good character. (T1, pp.8-14)

(c) By way of balance, I set out the facts as contained in the Applicant's Statement of Facts and Contentions as follows:

1. Mrs Carmelita Alberto Peljha, a Filipino citizen, born on the 10 May 1949, aged 51, is the spouse of the applicant husband, Velemir Peljha, Born on 30 July 1937, aged 63.

2. Mrs Peljha entered Australia on a one month's visitor's visa on the 18th August 1996.

3. Mrs Peljha continued to stay in Australia after the expiration of her visa on the 18th September 1996 for a further period of 21 months. During this period Mrs Peljha was granted a Bridging A and Bridging E visa respectively on the bases of the following applications :

A. 29.08.1996 - Lodged application for Protection Visa

B. 10.02.1997 - Lodged application to appeal with the RRT against decision to refuse the grant of Protection Visa

C. 22.07.1997 - Lodged Ministerial Appeal under Section 417 of the Migration Act (the Act)

D. 15.12.1997 - Lodged an application for Change of Circumstance

E. 19.02.1998 - Lodged an application for appeal with IRT against decision to refuse to grant change of circumstance visa

F. 16.04.1999 - Lodged Ministerial Appeal under Section 351 of the Migration Act (the Act)

4. In early 1999, Mrs Peljha met Velimir Peljha. On 27th April 1999 the Parties was married in a civil ceremony before a marriage celebrant and then again on the 1st May 1999 in a religious Catholic ceremony at Our Lady of the Rosary Parish at St Marys.

5. On 17th June 1999 Mrs Peljha departed From Australia

6. On 22nd June 1999 Mrs Peljha lodged her Spouse (309) visa application with the Australian Embassy in Manila. On 23rd June 1999 she was interviewed and again on the 9th September 1999.

7. On 11 January 2000 Mrs Peljha's application for Spouse (309) visa Application was refused by a delegate of the Minister.

8. On 29th February 2000 Mr Peljha appealed against the decision to Refuse Mrs Peljha the grant of spouse visa before the Administrative Review (sic) Tribunal .

9. The applicant husband, Mr Peljha, visited Mrs Peljha in the Philippines in December 1999 for a period of two (2) weeks. He was only granted a two week visa to enter the Philippines. Mrs Peljha's continue to reside in the Philippines in uncertain separation from the applicant husband, Mr Peljha.

10. Mr Peljha and Mrs Peljha continue to perform and reinforce their marriage obligations to each other by supporting and nurturing each other mentally and emotionally and nourishing their marriage relationship through daily telephone contact.

(d) The Applicant's own statement (exhibit A2) is set out in full as follows:

I am Velemir Peljha, Pension of 2/104 Wattle Avenue, Caramar in the State of New South Wales.

1. I am the applicant husband of the principal applicant, Mrs Carmelita Peljha.

2. I was born in Vrbas, Yugoslavia on the 30 July 1937. I am 63 years old. My first marriage ended in divorce on 3 June 1986. I have 2 children from my first marriage.

3. I am a Horse Accessories and Harnish maker by trade.

4. Since my divorce in 1986 I devoted my time to my trade and never entered into any relationship until I met my wife, Carmelita, in early January 1999.

5. At 63 years of age and a bitter family divorce behind me I believe that my wife has all the qualities of a morally upright person.

6. My wife, at 51, has never been married. A primary schoolteacher by profession, my wife is deeply religious, honest, straightforward and a naivety and simplicity unusual at her age which I acknowledge is a contributing factor in a lapse of judgement and an unusual and isolated diversion from an otherwise consistently upright person such as my wife.

7. Prior to my marriage to her I have observed her on various occasions, in social and business settings and in her personal dealings with friends and the community.

8. My wife constantly exhibited integrity of character and simple honesty.

9. Prior to our marriage my wife discussed with me the applications she has lodged in Australia. I believe her applications were legitimate exercise of her legal rights in Australia.

10. I married my wife twice, once in a civil ceremony on 27th April 1999 before a marriage celebrant and again on the 1st first May 1999 in a religious ceremony before a priest.

11. I lost my trust marriage until I met Carmelita. I find my wife, Carmelita, to be faithful, of strong character and honest. During all time that I live with my life with her, her general conduct was one of integrity and honesty and she exhibited a consistent willingness to come forward with the truth.

12. My wife's presence in Australia would benefit the community because of her deep moral and religious faith and her true and genuine concern for a true and mutually loving marriage.

13. Since my wife's departure from Australia on the 17 June 1999, I continue to communicate with her daily on the telephone and through the telephone we constantly nurture and strengthen our life together emotionally and mentally despite the unbearable distance and uncertain separation. I receive letters from my wife regularly and I send her money every month.

14. I am desperate for my wife to come back. I am alone and my wife's separation is distressing me everyday and the uncertainty of my separation from my wife is affecting my ability to function effectively and normally everyday and the continuing emotional and psychological displacement caused upon me is incalculable in maintaining a happy, stable and quality married life which I have legitimately expected when I married my wife on the 27 April 1999.

3. Evidence was given by Mrs Peljha by telephone link to the Philippines and with the aid of an interpreter in the Tagalog (Filipino) language, and also by the Applicant. Mrs Peljha obtained a Bachelor of Science in Education at Far Eastern University in Manila, where the language of instruction included English. In addition, of course, she had an extended stay of approximately three years in Australia. She was clearly fluent in English and did not in fact require the assistance of an interpreter. Indeed, there were many occasions on which she answered questions without waiting for the interpreter's translation.

4. The evidence of Mrs Peljha can be summarised as follows:

(a) She graduated from her university in 1972 and worked for many years thereafter as a teacher. She came to Australia on a visitor's visa (valid for one month) in August 1996 and stayed with her niece and family, who reside in Sydney. Some thirteen days after her arrival she was introduced to Carol Suasin, a solicitor and immigration agent. An application was made for a protection visa (T6). The grounds on which that application was based were written out by Mrs Peljha who copied them from a file provided to her by the solicitor. It is unnecessary to set out those grounds in full since they were altogether untrue.

(b) When the application for a Protection Visa failed, Mrs Peljha appealed to the Refugee Review Tribunal ("RRT"). She gave evidence before the RRT testifying as to the same false grounds, even though she knew they were not true. After failing before the RRT, an application under section 417 of the Migration Act 1958 ("the Act") was made to the Respondent (T14). At this stage, Mrs Peljha utilised the services of a different solicitor.

(c) After the application to the Respondent under section 417 of the Act failed, Mrs Peljha applied nevertheless to remain permanently in Australia alleging a change in circumstances (T26). That application failed, as did a subsequent application to the Immigration Review Tribunal. Page 188 of the T Documents sets out in this regard questions 77 and 78 and the answers provided by Mrs Peljha. Question 77 reads:

What circumstance has led to your relative needing your assistance (e.g. permanent disability, death of a close relative, etc.)?

My relative works and so does her husband. The children require care and supervision in their absence. The problems have arisen before and after school and during school holidays.

Give details of the assistance you provide to your relative

To arrange and prepare their meals before and after school and prepare their clothings. Assist in general household chores and shopping. Being a teacher I could supervise and guide my grandchildren in doing their homework.

(d) Mrs Peljha married the Applicant on 27 April 1999, and returned to the Philippines on 17 June 1999. Mrs Peljha lodged an application for a spouse visa sponsored by the Applicant in June 1999 (T40) and was interviewed by the Australian Embassy in Manila in June and September 1999. It was at this stage only that she admitted that the basis of her claim for a protection visa was entirely false. The Tribunal refers in this regard to clause 13 of the Facts as contained in the Respondent's Statement of Facts and Contentions, and set out in paragraph 2(b) of these Reasons. Before marrying the Applicant, Mrs Peljha told him that she should be obliged to return to the Philippines. Her evidence was that she did not tell him of the false nature of her applications.

(e) Mrs Peljha said that she admitted the bogus nature of her claim to the Australian Embassy in Manila because "she felt guilty". Since returning to the Philippines she has not sought employment as a teacher because to do so would require her to commit herself for a year and she hopes to be reunited with her husband. She said in this context that her husband, the Applicant, had advised her not to take up any such employment.

(f) Mrs Peljha said that from October 1996 until 1999 she worked for a firm in Redfern packing electronic extensions into boxes, at a weekly salary of approximately $350. She said at first that she had been told, when she first received an E class bridging visa, that she was permitted to work. At a later stage in her evidence she agreed that the E class visas (and there were a number of them) were issued on the express condition that they prohibited her from working. This was made clear in a number of letters addressed to Mrs Peljha (T16, T18 and T25).

(g) When Mrs Peljha first came to Australia she had about $1000 in savings. She used her salary partly for her own needs and partly to remit monies to her relatives in the Philippines.

(h) When warned, during the course of the evidence, that she could be punished for her offences under the Act, she said that she would accept the penalties in order to be reunited with her husband. She said also that the Applicant sent her monthly amounts of $500 and that they communicated by telephone daily.

(i) In cross-examination Mrs Peljha admitted that she adhered to the untruthful story when interviewed firstly by the immigration authorities at an early stage of her application, and also by the RRT in connection with her application to that Tribunal.

(j) As to her change of circumstances application, she said that her niece was in receipt of social security and does not work. She said in this regard that her niece wanted to work, and that she intended to help her niece by giving up her own job so as to care for her niece's children and so enabling her niece to work. The Tribunal notes that there was no evidence before the Tribunal by Mrs Peljha's niece and, having regard to question 77 on page 188 of the T Documents (referred to earlier in these Reasons), considers that this application was also without foundation.

5. The Applicant's evidence can be summarised as follows:

(a) He was made redundant a few years ago and is now a pensioner. He is in receipt of a pension of approximately $370 per fortnight. He owns his own home and derives further income of approximately $125 per week from a rental property.

(b) He sends Mrs Peljha money, which varies from month to month between $200 and $500 and depending on his other commitments. Put in other words, he would take into account bills such as water and light so as to calculate what he could afford to send Mrs Peljha. He has two grown up sons (aged 32 and 33 respectively) by his prior marriage, whom he sees from time to time, but, as he put it, they "have their own lives".

(c) The Applicant said that he is 63 years and in good health. His Counsel made specific mention of blood pressure and cholesterol levels, and the Applicant indicated they were good. He knew that Mrs Peljha would have to return to the Philippines but did not know the extent of her offences under the Act. The Tribunal notes in this regard that this latter statement is inconsistent with clause 9 of exhibit A2, in which he said that his wife had discussed the applications she had lodged in Australia and that he believed her applications constituted a legitimate exercise of her legal rights. I am prepared to accept in favour of the Applicant that he was not aware of the full extent of the fraudulent nature of those applications.

(d) The Applicant has visited Mrs Peljha in the Philippines. When asked whether he would, if the decision in this matter went against him, consider relocating to the Philippines to join her, he said that he would have to consider the matter. He said a little later that he thought that the Philippines might perhaps be too hot. He said also that he feared that he might, in Manila, be taken for a rich man and kidnapped. Moreover he indicated that he had himself come to Australia in 1970 and was reluctant to consider a further move. (The Tribunal notes that an interpreter in the Ukrainian language had been engaged but that the Applicant indicated that he did not need the services of that interpreter who was thus released).

(e) The Applicant appears to be devoted to his wife. Nonetheless, he was not altogether certain that he would have married her had he known the full extent of her transgressions against the Act. The Tribunal does not doubt though that he wishes to be reunited with her and, having regard to the evidence of Mrs Peljha, the Tribunal accepts that she also desires to be reunited with her husband.

6. (a) The term Direction 17 is a reference to the Ministerial Direction referred to in the Respondent's Statement of Facts and Contentions and I also adopted that term. I note that Direction 17 is binding on me pursuant to section 499 of the Act.

(b) During the course of the hearing and after references to the provisions of sections 234 and 235 of the Act (and also other sections of the Act) and the penal consequences of the breaches provided in particular in respect of section 234 and 235 of the Act, the Applicant's Counsel fairly (and in my view properly) conceded that Mrs Peljha did not pass the character test set out in part 1 of Direction 17. Accordingly it became necessary only for me to consider whether the discretion contained in part 2 of Direction 17 should be exercised in her favour.

7. (a) Clause 2.3 of Direction 17 (which is referred to in clause 22 of the Respondent's Statement of Facts and Contentions, as set out in paragraph 2(a) of these Reasons) provides as follows:

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.

Clause 2.3(c) does not apply and clause 2.3 (a) should be considered in the light of clause 2.5 (the provisions of which are set out in clause 23 of the Respondent's Statement of Facts and Contentions as referred to in paragraph 2(a) of these Reasons). I note that I do not think that there is any real risk of recidivism. As to clause 2.3(b) (and also clause 2.5 (c)) of Direction 17, the Australian community expects a non-citizen to comply with Australian law and would, in my view, regard her persistent and wilful disregard of the Act over so long a period unfavourably. The breaches by Mrs Peljha were by no means isolated; on the contrary they took place throughout her three-year stay in Australia. Clause 9 of the Facts contained in the Respondent's Statement of Facts and Contentions indicates that Mrs Peljha relied in part on the fact that she had been in Australia for almost three years. That argument was of course particularly untenable, given that the length of her stay in Australia arose from her own unlawful conduct.

(b) Specifically as to deterrence, I refer to paragraph 11(i) of my decision in Re Golding (supra) in which I said :-

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 Chappel in Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790 and quote paragraphs 44 and 45 read 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). As the Tribunal stated recently in the decision of May v Minister of Immigration and Multicultural Affairs [2000] AATA 480.

As a signatory to the Refugee Convention Australia has established a well recognised assessment process to determine the legitimacy of claims made for protection visas by persons reaching Australian shores. It is a matter of common knowledge that each year many thousands of dispossessed and traumatised persons do arrive in Australia seeking refugee status. It is both an affront to these displaced persons, as well as the Australian community at large, that certain individuals -

In this case like Ms Gawronski and her uncle and friends:

should abuse this assessment process in such a flagrant and deliberate manner in order to obtain benefits, such as residency and the right to work, to which they would not otherwise be entitled.

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

(c) As to whether Mrs Peljha's belated confession some three years after the event, in June 1999 at the Australian Embassy in Manila, is evidence of recent good conduct is doubtful. I refer in this context to the decision of Deputy President McMahon in Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443 (which I agree with), and quote paragraphs 25 to 36, which were also cited in Re Golding (supra), as follows:

25. Ms Dalilis engaged in deception not once or twice but on a number of occasions. She knew that facts would be inserted in the protection visa application not because they were true, but because they were intended to be believed and to persuade the delegate to grant her the visa. If she did not see the final version of the facts at that stage, she certainly saw them when she was interviewed by the delegate. She did not seek to correct these facts except in a minor respect. She had another opportunity of telling the truth when the matter went to the Refugee Review Tribunal and again when the Minister's discretion was invoked. On none of these occasions did she seek to expiate her deception. It is not true to say, therefore, that the delegate merely selected an isolated incident.

26. The applicant then submitted that in fact his wife had made no verbal or written statement which could be defined as "incorrect or false". The incorrect information was provided by Mr Miranda who was described by Mr Dumbrell as the "catalyst for providing this incorrect information". As Mr Miranda was the author of the misleading information, he believed that his wife should not bear responsibility.

27. This is a quite unacceptable submission. Ms Dalilis knew that deception was intended. Even if she did not know the details of the story to be told at first, she certainly knew the details at a later stage and took no steps to correct them.

28. Mr Dumbrell then said that sufficient credit had not been given to his wife and sufficient attention had not been paid to her present general conduct. Her unexplained assertion in the current application form, that she had not been required to leave Australia is, in my view, evidence of a continuing pattern of attempted deceit. The fact that she made admissions at the two interviews in Manila does nothing to add credit to an assessment of her present general conduct. Mr Dumbrell submitted that "in her recent present dealings with the Department she has demonstrated transparency in being open and honest to which these qualities must be applied to someone who is of good character". In this he is mistaken.

29. Mr Dumbrell relied on some passages of the judgement in Baker to support a submission that "bad character should not be forever assumed on the basis of one incident". Of course, there was not one incident of deceit. There were many. Mr Dumbrell points to the fact that the false statement was made over four years ago on 19 April 1996. To this I would say that it may have been made for the first time on that date, but it has been repeated a number of times and has been supplemented in the present application by yet another false statement.

30. Mr Dumbrell, relying on a passage in the judgement in Irving v Minister for Immigration Local Government and Ethnic Affairs 139 ALR 84, pointed to the fact that supplementing the absence of criminal convictions, there were now character references which he tendered in evidence. Mr and Mrs Mamaril, the relatives in Brisbane with whom she stayed, gave short references in which they described Ms Dalilis variously as "trustworthy, well mannered, helpful, polite ... with a very pleasant nature ... has a positive attitude and hard working nature... an overall fun loving nature... kind and trustworthy... caring nature and sincere attitude". None of these descriptions are of any assistance in determining whether Ms Dalilis has met the character test, which is a statutory criterion designed specifically for the purpose of, and with reference to, migration. A Philippines businessman who was previously the manager of a bank attested that:

"I honestly believe that she is in good moral character, industrious, god fearing, sincere and honest in her dealings with people... She possessed a good public relations and more adept in sales/marketing activities."

31. None of the persons who gave these references has apparently been informed of the nature of the dealings between Ms Dalilis and the Department. Their references do not assist, therefore, in determining whether she meets the character test.

32. Mr Dumbrell also referred to the well-known phrase used by Lee J in Irving that one should look to the "enduring moral qualities of a person". Irving_, of course, was decided before the extensive amendments were made to the Act by Act Number 114 of 1998. The section no longer speaks of_ "good character" as such, but of a statutorily defined "character test" which is to be looked at in its interaction with the operation of the Migration Act. Ms Dalilis overstayed her visitor visa by a considerable period, went to dishonest lengths to prolong her stay and yet still blames Mr Miranda for her predicament. Her failure to accept personal responsibility is itself a reflection on her enduring moral qualities. Mr Dumbrell pointed out that his wife had contributed $93 to World Vision Australia and that she should be given credit for this charitable act. Compared with the other actions to which I have referred, such a donation would be insignificant as an element in considering Ms Dalilis' present general conduct.

33. Section 499 empowers the Minister to give a written direction concerning the performance of the functions of decision makers, including this Tribunal. In determining whether the character test has been passed, the Minister has directed that I should consider breaches of the immigration law and the making of an application for the grant of a visa of any kind based upon a bogus document, or the making of a false or misleading statement, as constituting a failure to pass the character test. On any view of the facts, therefore, Ms Dalilis must fail the subsection 501(6) test. She either knowingly provided, or was an accessory in the provision of, false information in her application for a protection visa. She knew when she lodged that application that she was wrongly applying for Australia's protection as a refugee. She did not take advantage of any of the occasions when she could have rectified the wrong statements and she did all this merely to extend her stay in Australia for as long as possible so that she could legally work under the provisions of a bridging visa associated with her application for a protection visa. This conduct demonstrates a blatant disregard for Australian immigration laws. It amounts to a failure to pass the character test.

34. There is still a residual discretion notwithstanding that failure. Refusal of the spouse visa will obviously cause distress both to Mr Dumbrell and to Ms Dalilis. This was evident and genuine during the course of the hearing. Mr Dumbrell faces a life of separation from his wife if he stays in Australia and an uncertain future if he moves to the Philippines. Mr Dumbrell asked in his submissions whether it was reasonable to expect him to travel overseas, to leave his immediate family and friends, and to live in a country in which he did not speak the native language and to embark upon an uncertain future in the area of his employment skills as a computer programmer. He asked in his submissions on discretion whether it was reasonable that he should be punished for an act to which he was not privy.

35. He 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.

36. Mr Dumbrell complained of an excessive financial burden that is placed on him by supporting his wife. Although he did not give details, he said in his written submissions that he provided monies to support her in the Philippines. Ms Dalilis, however, offered no grounds upon which the discretion should be exercised benignly. She did not point to any particular hardship that she was suffering by being denied entry into Australia, except for the fact that she would like to come here and work in this country. In the meantime, she is studying Japanese in the Philippines with a view to taking up employment in the tourism and travel industry.

(d) The only countervailing factor is, of course, the distress which continued separation would cause to the Applicant. I accept that he would be distressed by a continuation of their separation. However, he is a pensioner with an independent income, all of which would under current Australian exchange control regulations be transferable to the Philippines. Were Mrs Peljha to resume her profession as a teacher (and she is only 51) their combined income would, I imagine, be sufficient to support them in comfort in the Philippines. In the event that the Applicant truly considers that Manila is too dangerous, residence in another safer town in the Philippines could be considered. The Applicant is after all free to move to the Philippines and, in particular, is not constrained by work commitments. As he put it, "his two sons are grown up and live their own lives", and in any event I did not receive the impression that this particular aspect weighed with him to any great extent. There is of course another possibility and that is residence in another country. I accept though that, in either situation, for the Applicant to emigrate again would constitute a hardship.

8. During her evidence, Mrs Peljha referred on a number of occasions to her guilt over her deceitful conduct. While I accept that she genuinely wishes to be reunited with her husband, her expression of remorse must be treated with some reserve. It is likely that she is remorseful more about the consequences of her actions than about the actions proper.

9. (a) A part of paragraph 12(b) of my decision in Re Golding (supra) is also, as a matter of convenience, repeated in this decision as follows:

(b) Although each case of this nature turns on its own facts it is relevant in my view to have regard to decisions and in particular recent decisions of this Tribunal which involve similar fact situations. A search has revealed a large number of just such cases, and which indicate a common problem or theme. That pattern or theme includes most of the following factors:

(i) a female applicant from the Philippines who enters Australia on a visitor's visa;

(ii) soon after arrival an application is made for a protection visa based on whole or in part on false grounds;

(iii) when that application fails there is an application to the RRT, followed, when that application is in turn unsuccessful, by a section 417 application to the Respondent;

(iv) there is often work in Australia in breach of visas and a lengthy stay in Australia (and towards the end of it a marriage in Australia), before a return to the Philippines.

I indicated at the hearing that I intended to refer to similar fact situation decisions, even if they were not cited at the hearing. Accordingly I refer by way of a few examples only to the decisions of Deputy President McMahon in Re Dumbrell and Minister for Immigration and Multicultural Affairs [2000] AATA 443, Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, Re Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 and Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554; and of Deputy President Chappell in Re Gawronski (supra) and Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480. In all of these cases the Applicant was unsuccessful. As Brennan J said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, consistency in decision making is desirable (at 636, 639 and 643). I note in any event that I agree with all of these decisions.

(b) In this case, Mrs Peljha made applications over and above the usual process of applying for a protection visa, appealing to the RRT and making the section 417 application to the Respondent. She also made the change of circumstances applications referred to previously in these Reasons.

(c) I consider that it very probable that Mrs Peljha came to Australia for economic reasons and not because she feared persecution. It seems likely, on a balance of probabilities, that she committed numerous breaches of the Act in order to allow her to stay in this country. Direction 17 (and see in particular the fourth dot point in clause 1.9(b) of Direction 17) obliges me to treat these offences as very serious. They appear in the same context as other crimes, which might otherwise be thought to be more serious.

(d) I have some considerable sympathy for Mrs Peljha. She sought to come to Australia in order to have a better life. In doing so, she rode rough-shod over the Act. If she had come to Australia and applied to be a resident legally, there is little reason to think that she would not have become a reputable and working member of the community. In various parts of the world, citizens of the Philippines are productive workers, often doing jobs which are not in great demand. Their remission of funds out of their earnings back to the Philippines apparently makes a significant contribution to the economy of that country.

10. (a) What then do all of these fruitless applications achieve? The answer has to be that they are made purely in order to gain time. The law (and I refer also in this context to relevant decided cases, a few only of which have been cited in these Reasons) is such that the prospects of success are remote.

(b) The evidence of Mrs Peljha (see paragraph 4(a) of these Reasons) was that she copied her grounds from a file provided by her solicitor. I do not comment on the truthfulness of this allegation, more particularly because I have not heard from the solicitor involved. However, an allegation such as this should be investigated; to do so should not be difficult. Were these or similar grounds used in another application? One must remember that the whole overall process is costly to Australia both in time and in money.

(c) There must be, in my view, a very real possibility (or even perhaps a probability) of the whole process originating in the Philippines. The protection visa application is generally made soon after arrival in Australia. It is conceivable that women such as Mrs Peljha are told (in the Philippines) that a recommended agent can assist them in obtaining what they desire (ie. residence in Australia). The cost to the visa applicant (apart from the fact that her hopes are raised falsely) must be considerable.

(d) It may be that the Australian Embassy in the Philippines could take some form of positive action to bring the true position to the notice of visa applicants. A suggestion that the publication of Tribunal decisions on the Internet serves this purpose is of doubtful validity. Assuming access to the Internet (which may perhaps be a large assumption) the website of this Tribunal is unlikely to be known in the Philippines.

11. In summary then, the Tribunal does not consider that Mrs Peljha's flagrant and persistent breaches of the Act are outweighed by any relevant countervailing factors, and in particular the interests of the Applicant.

12. Accordingly the decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block

Solicitor for the Applicant Virginia Odtojan & Associates

Solicitor for the Respondent Matt Grey C/- Australian Government Solicitor