Re Honey Rubrico v the Minister of Immigration and Ethnic Affairs [1989] FCA 90; 23 FCR 208

Re Honey Rubrico v the Minister of Immigration and Ethnic Affairs [1989] FCA 90; 23 FCR 208 - FCA 1989 case summary — Zoe

[100]

"16.(1) Where, after the commencement of this Part

or before the commencement of this Part but after

the commencement of the Immigration Restriction Act

1901, a person who enters or entered Australia is

not, or was not, at the time of that entry, an

Australian citizen and who -

(a) evades or evaded an officer for the purpose of

entering Australia;

(b) at the time of, or prior to, that person's

entry into Australia, the person -

(i) produces or produced, or causes or caused

to be produced, to the Minister or to an

officer, in respect of that entry -

(A) a permit, certificate, passport,

visa, return endorsement,

identification card or any other

document that was not issued to the

person, is forged or was obtained by

false representation; or

(B) a passenger card that contains

information that is false or

misleading in a material particular;

or

(ii)makes or made, or causes or caused to be

made, to the Minister or to an officer,

in respect of that entry, a statement

that is false or misleading in a material

particular;

(ba)at the time of, or prior to, the grant of a

visa or a return endorsement in respect of the

person, the person -

(i) produces or produced, or causes or caused

to be produced, to the Minister or to an

officer, in respect of the grant of that

visa or return endorsement, a document of

the kind referred to in sub-sub-paragraph

(b)(i) (A); or

(ii) makes or made, or causes or caused to be

made, to the Minister or to an officer,

in respect of the grant of that visa or

return endorsement, a statement that is

false or misleading in a material

particular; or

(c) at the time of entry is or was a person of any

of the following descriptions, namely:

(i) a person suffering from a prescribed

disease or a prescribed physical or

mental condition;

(ii) a person who has been convicted of a

crime and sentenced to death, to

imprisonment for life or to imprisonment

for a period of not less than 1 year;

(iii) a person who has been convicted of 2 or

more crimes and sentenced to imprisonment

for periods aggregating not less than 1

year;

(iv) a person who has been charged with a

crime and either found guilty of having

committed the crime while of unsound mind

or acquitted on the ground that the crime

was committed while he was of unsound

mind;

(v) a person who has been deported from

Australia or another country; or

(vi) a person who has been excluded from

another country in prescribed

circumstances,

that person shall, notwithstanding section 10, be

deemed to be a prohibited non-citizen unless he is

the holder of an entry permit endorsed with a

statement that the person granting that permit

recognizes him to be a person referred to in this

sub-section."

[178]

"50 I took into account the following facts in

favour of the applicant's request to remain

permanently:

(a) she has a defacto relationship of considerable

duration with an Australian citizen, Mr

Evangelista. It is claimed they are engaged

and intend to marry later in January 1989 now

that Ms Rubrico is free to marry. Mr

Evangelista has a block of land in his name

upon which they are planning to build a house

after they are married;

(b) Ms Rubrico maintains that Mr Bradley

encouraged her to give false information to

the embassy in Manila. It would seem that his

prompting gave rise to an opportunity for Ms

Rubrico to break from complicated social and

family circumstances in the Philippines. This

is reflected in her written statement of 25

September 1987;

(c) she supports her family in the Philippines

through her employment in Australia;

(d) she would face shame and humiliation if she

had to return to the Philippines and now

considers Australia as her home;

(e) both Mr Evangelista and Ms Rubrico could be

expected to be aggrieved by a decision to

refuse permanent residence because it would

cause their separation. Mr Evangelista has

said he is prepared to sponsor her return to

Australia if he has to leave and arguably this

presents as further evidence of the

genuineness of his feelings for Ms Rubrico;

and

(f) in the event of her voluntary departure or

deportation, the applicant would have an

embargo of either three or five years imposed

on her return.

51 I decided not to grant resident status as I

have more weight to the following factors:

(a) Ms Rubrico and Mr Evangelista have both

described their relationship as

'semi-defacto'. He claims to visit her, on

average, four days per week, remain until the

early hours of the morning and then return to

his parents' home. This pattern is confirmed

by the applicant who recently claimed she sees

Mr Evangelista 'virtually every night' but he

still lives at his parents' house while she

stays in her own flat. The length of their

association remains uncertain and has proved

difficult to pinpoint, as has a number of

inconsistencies in their individual accounts

of the relationship, even with the benefit of

several interviews. I accepted however, that

Ms Rubrico and Mr Evangelista do share a

genuine relationship and have known each other

for more than three years, but in the absence

of the usual hallmarks of a defacto

relationship, such as joint tenancy, shared

property or assets, joint bank accounts etc, I

gave their relationship somewhat less weight

than it would deserve if they were living as

man and wife. Throughout the latter period of

their relationship I considered that, insofar

as marriage is concerned, neither person

appeared willing to commit him or herself to a

time other than 'later in the year', even when

Ms Rubrico found she was at liberty to marry.

It now appears they intend to marry in January

1989 and while that is a matter which I took

into account, of itself that factor did not

afford her any more access to Section 6A of

the Act than her present relationship;

(b) regardless of the applicant's claim of being

encouraged by Mr Bradley, she was a knowing

and willing party to deception designed to

achieve entry into Australia as a permanent

resident. her illegal immigrant status flows

from this duplicity and it would be

unreasonable for her to claim anything other

than full responsibility for her status;

(c) having achieved entry into Australia the

applicant attempted to maintain the deception

by supplying forged references and variously

making misleading and false statements to the

Department;

(d) the applicant has committed offences under the

Migration Act in becoming a prohibited

non-citizen and by working without permission,

even after having been instructed to cease

employment;

It is espoused in policy that:

'It is an acceptable principle of justice and

fairness that people should not derive benefit

from an illegal act they have committed.

Illegal immigration is no exception'.

I considered that the applicant set upon a course

of deception which worked for quite some time.

Through her contrivances and transgression of

migration law she managed to secure the benefits of

over six years in Australia.

52 Insofar as voluntary departure is concerned I

noted that the applicant had stated in the past

that she would prefer voluntary departure and at

one time she lodged a deposit on a return ticket to

the Philippines. Current evidence did not show if

she could afford her fare to the Philippines but

she has been in steady employment, she said, and

while she has made it plain she does not want to

return to Manila at all, she would most likely

prefer to do so voluntarily in lieu of deportation.

I considered however that deceptions and less than

satisfactory immigration history outweighed the

factors in support of the grant of concession of

voluntary departure.

53 In the light of all the circumstances I

decided to order the applicant's deportation."

[187]

143. In her submission to the respondent's Department, the applicant had maintained that she had been instructed by Bradley to make the statements made in Manila in October 1980. If the decision-maker had said that the carrying out of such instructions would not prevent sub-s.16(1) of the Act applying to the applicant's circumstances, his statement would be unexceptionable. However, in so far as para.51(b) is a statement of matter taken into account in deciding how to exercise his discretion, it would appear that the decision-maker has stated that the circumstances in which the applicant became a prohibited non-citizen were irrelevant to the exercise of that discretion. The failure to consider those circumstances when assessing whether strong compassionate or humanitarian grounds existed, would signal the omission of a relevant consideration. It would be a matter for the decision-maker to attach such weight as he saw fit to the evidence of circumstances of mitigation in weighing the strength of the compassionate and humanitarian circumstances. (See Issam Wahab Hindi v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Sheppard J., 30 September 1988 pp 33-34.) It would have been important for the decision-maker to consider the likelihood of the applicant being instructed to make those statements. The decision-maker had some material before him from Bradley's sister and sister-in-law indicating their belief from their long experience of Bradley that the applicant's contention was true. Furthermore, the decision-maker had to consider that in aranging for the applicant's migration to Australia, Bradley was seeking to gain a particular benefit for himself as a result of which the applicant, according to the records before the decision-maker, suffered emotional and physical abuse. Paragraph 51(b) of the decision-maker's reasons indicates that the discretion has been improperly exercised in that a matter germane to the decision-maker's consideration of compassionate or humanitarian grounds, and not merely peripheral or incidental thereto, has been excluded from consideration, thereby attracting the provisions of paras.5(1)(e) and 5(2)(b) of the ADJR Act.

[188]

144. Paragraph 51(c) of the reasons displays further error on the part of the decision-maker. There was no material at all before the decision-maker to allow him to state that the applicant had supplied forged references after her entry into Australia and to permit him to take such a matter into a consideration when exercising his discretion to refuse or grant an entry permit. Furthermore, the statement that the applicant attempted to maintain "the deception" by "variously making misleading and false statements to the Department" reveals that the material before the decision-maker had not been duly analysed. The decision-maker treated the applicant as a prohibited non-citizen after forming the view that statements that the applicant had made in Manila in October 1980 regarding the non-existence of children were false and misleading in a material particular. If that alleged deception was a material aspect of the applicant's entry into Australia, its falsity was disclosed by the applicant within five months of her arrival in October 1981 and no statement to the contrary was made by her after her arrival in Australia. No other statements were alleged to be false or misleading in a material respect and the decision-maker does not define what deception was being fostered. In September 1986 the applicant disclosed that she had been untruthful in previous statements relating to a previous marriage, her surname and her baptism. As is set out above, when the applicant was first interviewed in June 1985 she did disclose that Dumaguing was the father of her child and stated that he had refused to marry her. In her interview on 7 January 1986, the applicant repeated that she and Dumaguing had not married. She stated, however, that the birth certificate for the child stated that she and Dumaguing had been married. In September 1986 the applicant disclosed that she and Dumaguing had gone through a ceremony of marriage in March 1978. The applicant had used the surname of a cousin, Makehekung, whilst a resident of the Philippines to obtain a passport in that name. She had used the names Honey Rubrico Makahekung at the time of migration. In an interview in June 1985 she had indicated that her father's name was Makahekung and her mother's maiden name Rubrico and did not disclose that her father's surname was Rubrico and that she was born Rubrico until the interview of 22 September 1986. In addition to the above the applicant admitted in interview on 22 September 1986 that the letter relating to baptism, presented in October 1980 in Manila, had been obtained by her uncle and was not genuine. That letter is not amongst the papers before the decision-maker and nor is it referred to in any of the application forms completed in Manila in 1980. It was probably presented in Manila because the applicant's birth was not recorded and she could obtain no official birth certificate.

[193]

148. The decision-maker's consideration of the question of voluntary departure, as outlined in para.52 of the reasons, shows a miscarriage of the discretion. The consideration of this decision was equally tainted by the errors that bore upon the decisions to refuse the grant of an entry permit set out above, but it displayed further error. Firstly, the reference to a "less than satisfactory immigration history" could only be an accurate statement if it referred to misleading material statements which were matters to which the decision-maker had already given attention. In fact, the only material before the decision-maker indicated that the applicant had migrated as the wife of an Australian citizen, had endeavoured to make that marriage work, had melded into the Australian community and had been a self-suporting member thereof after the failure of her marriage in circumstances that involved no fault on her part. Furthermore, the decision-maker could have been in no doubt that the applicant would have effected her own departure if required to so do rather than suffer deportation, a matter he acknowledged in that paragraph of his reasons. Above all, in September 1986 in the interview in which full disclosures were made, the applicant provided evidence that she would be able to leave Australia on 4 November 1986 if required to do so. She was allowed to remain in Australia for a further eighteen months whilst she made arrangements to gain an annulment from the Catholic Church of her marriage to Bradley to enable her to marry an Australian citizen. The respondent's Department was made aware by the applicant and Mr Evangelista of the existence of the relationship and of their intention to marry. To allow a further eighteen months to elapse whilst such arrangements were made and the relationship developed and have the applicant duly report weekly to the respondent's Department over a period of 14 months after February 1987 and then decide that the applicant be deported, and not be requested to depart, defies any suggestion that the discretion has been properly exercised particularly when no adverse matters were raised against the applicant in that period according to the decision-maker's statement of reasons and the material before him.

At a glance

Court

Decision date

Before

Source

Judgment (195 paragraphs)

Re Honey Rubrico v the Minister of Immigration and Ethnic Affairs [1989] FCA 90; 23 FCR 208 (31 March 1989)

Parties

Legislation Cited (44)

Cases Cited (13)