Administrative Appeals Tribunal of Australia|2000-06-15

May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 (15 June 2000)

DECISION AND REASONS FOR DECISION [2000] AATA 480

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

IMMIGRATION AND CITIZENSHIP - subclass 300 prospective spouse visa - citizen of the Philippines - not a person of good character - past and present general conduct - lodgement of application for protection visa - application false - application refused - request for ministerial intervention - request refused - continued working illegally - allegation of fraud and malpractice on the part of migration agent - consideration of other general conduct - consideration of exercise of Tribunal's discretion - consideration of the need to protect the Australian community - need to send a strong deterrent message - consideration of the expectations of the Australian Community - legitimate expectation that visa applicant's conduct should not be rewarded - consideration of the best interests of the child - no evidence that child would be adversely affected by return to the Philippines - consideration of the effect of the separation on the applicant - acknowledged emotional hardship - decision affirmed

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238

Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277

Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148

Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780

Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, & May 1997)

Irving v Minister for Immigration, Local Government and Multicultural Affairs (1996) FCR 422

Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187

1. This is an application by Mr Oliver May (the review applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to refuse to grant to his fiance, Ms Rebecca Monis (the visa applicant), a subclass 300 (prospective spouse) visa. The refusal was based on a finding that Ms Monis was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.

2. Mr Nicholas Poynder, of counsel, instructed by Mr Sasko Markovski, represented Mr May at the hearing. Both Mr May and Ms Monis gave personal testimony to the Tribunal. The following witnesses also testified on behalf of the applicant:

3. Ms Juanita Kapel, a departmental advocate, represented the respondent. Ms Sally Reay-Young gave personal testimony on behalf of the respondent.

4. The Tribunal had before it documents and supplementary documents filed for the purpose of s37 of the Administrative Appeals Tribunal Act 1975 (the T and S documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:

A2 Certificate from Walden Textile Industries Inc. 17/2/2000

A4 Record from Webb of Register of Agents - business name T. Gonzales & Assoc. Solicitors 15/2/2000

A6 Far Eastern University, Manila - official transcript of record of Ms Monis

A7 Certificate of Bachelor of Science in Commerce - Ms R. Monis

5. In addition to these exhibits, and the T and S documents, the Tribunal also received additional documents relating to allegations which arose during the course of the hearing about the conduct of a migration agent, Mr Teddy Chua Gonzales. The circumstances which led to the production of these documents, and related submissions made about them by both of the parties, will be described in more detail later in this decision.

6. The following general facts, and chronology of events, which led ultimately to the refusal by the respondent of the visa sought by Ms Monis were not in dispute between the parties. Ms Monis was born in the Philippines on 22 May 1954. She grew up in that country, completing her high school education in 1970 and graduating from the Far Eastern University in Manila with a Bachelor of Science in Commerce Degree in 1977 (see A6). Following her graduation she worked in a number of positions as an accountant with Philippino businesses (see transcript p 51-52).

7. On 28 February 1988 Ms Monis was married to Mr Pablo Guevarra but the couple separated in June 1990 and were divorced on 12 June 1998 (T: 257). On 17 September 1991 Ms Monis had a daughter, Jharizz Monis. The father of this child was not recorded on the birth certificate (T: 227-229).

8. On 26 June 1996 Ms Monis and her daughter arrived in Australia on a visitor's visa valid for a period of three months. On 13 September 1996 Ms Monis lodged an application for a protection (866) visa. The application stated that Ms Monis was seeking protection in Australia so that she did not have to go back to the Philippines. The application also contained a statement, in the following terms, about why Ms Monis had left the Philippines:

1. I spent my childhood years in a province in the Philippines known as La Union. This is found in the northern part of the country. However I pursued my tertiary education in Manila and after school I worked in this City.

2. One evening while at home someone knocked at our door. When I opened it a man introduced himself as Miguel Vallejo. He said he was from our town and after a few seconds I did recognize him. He and I were childhood friends. We did spend a lot of time as kids and it was a welcome sight to see him again. Miguel said he and his male compatriot who he introduced as Ramon were travelling south and asked if they could spend three days at my place.

3. I said that he was most welcome and I prepared a room for him and his friend. I told him I had to leave early for work the next day and requested him to lock-up [sic] the place before he left. I said I would prepare dinner and expected them back. That evening we started dinner and went back in time in recalling our younger days.

4. They left early the following morning. As I was about to leave the house, five men all in ... came to see me. They said they were military operatives and showed me the photo of Miguel. They were looking for him. They asked if I knew him. I said I did and that he was staying with me. They then said that Miguel was a communist leader and they were after him. I was upset the whole of that day. I did not even know how I could contact Miguel.

5. Later that morning Miguel and Ramon were captured by the group I earlier referred to. I then received a call from a man who said he was Miguel's mate. He said that I betrayed Miguel. I told him I did not know what was going on. He then said 'Be Careful' and hang-up [sic]. It was the way he said it that frightened me.

6. ... threat caused me anxiety. It destroyed my life and I had to leave my house and my work. I was always in fear for my safety. At one point I felt I was going to break down. I then thought of joining my sister in Australia.

9. A separate application for a protection visa was also lodged on 13 September 1996 on behalf of Ms Monis' daughter, Jharizz (T9). On 20 January 1997 these protection visa applications were refused by a delegate of the Minister (T11). This rejection was based on evidence available to the delegate which suggested that there was no real chance that Ms Monis and her daughter faced persecution either from the Communist Party or the New People's Army (NPA) (T: 93-95).

10. On 13 February 1997 Ms Monis applied for review of the delegate's decision by the Refugee Review Tribunal (the RRT). The following reasons were provided for this application:

My application for refugee status in Australia was refused by Miss M. Jane Delaney because of one reason alone. She says that there is no real chance that I would face persecution upon return to the Philippines. In reaching this conclusion she mentioned some reports. I feel that the best way to make this request for review is for me to answer these reports and comments made by her.

First in her reports is that the communist movement is on a decline. I beg to differ. The decline did happen but if we consider the present time this is no longer true. The communists are very much active in the country today. Besides a decline does mean that the problem is no longer there. I take interest in Ms. Delaney's own mentioned report at section 3.3.1'Manila church urges that talks resume'. If the communist situation has reduced itself to a level of insignificance, would there be a need for peace talks? Why negotiate with a party that has been reduced to a size of insignificance. I request that common sense be applied. No Sir, the communists have not been reduced to insignificance as Ms. Delaney would want to portray.

It would be a gross mistatement to say that the NPAs are limited to the areas specified in the report. The report enumerates Bicol, Samar, and 3 Southwestern provinces in Mindanao. What about Nueya Eoija, Cagayan, Pangasinan, Pampanga, Tarlac and even the Metro Manila areas? The report failed to mention these when in fact these are the strongholds of the communists. Interview any Philippine military officer and he/she will confirm this. This shows that the reports are inadequate since they missed out on the very obvious. For this same reason, I cannot simply relocate because of this extensive presence.

Freedom to change one's place must be accompanied by the knowledge that if you do change your residence that you will be safe. Even if I changed my residence but if I will be required to hide wherever I go, this will be a meaningless freedom.

Ms Delaney talks of factional infighting between 1991-92. This was a thing of the past. Long past. The communists have recovered from that.

It boarders [sic] on the ridiculous to accept that the communists would target only 'assets' of the military. This is just not true and again common sense will dictate the falsity of this claim. Communists in the Philippines kill for the slightest of reasons. In one case a town leader spoke against the communists and the whole town was torched by the communists. This was a sensational news item in the Philippines. I ask Ms. Delaney. Are the victims here assets of the military?

... Aley Boncayao Brigade is an outlaw organisation consisting of a few men. Any attempt to relate it to the communist movement would be a mistake.

Ms. Delaney could simply have asked me these questions ... before jumping to reject my application. I just...understand why she did not give me the opportunity ... respond out of justice and fairness. I cannot understand the haste on which she proceeded on my application.

With the above, it now is apparent that the reasons of Ms. Delaney ... weak. I rely on my application and seek a favourable judgement.

11. Ms Monis requested a personal hearing in relation to the review by the RRT. This hearing occurred on 24 June 1997 (see in general S1-S4). At the hearing, which was recorded, Ms Monis told the RRT Member conducting the review, Mr Jack Hoysted, that she was concerned about returning to the Philippines for the following reasons:

THE INTERPRETER: Somebody has been calling, which - the person's identity is unknown and so I am very much afraid that something bad might happen to me.

THE INTERPRETER: Someone was calling me several times. This person I do not know the identity.

MR HOYSTED: Why does the fact that someone who you do not know is calling you cause you concern?

MS MONIS: He is a friend of the Miguel whom I know and he is my childhood friend since the early age of my school and that frighten me and that but I do not know the one who is ringing me several times and - - -

MR HOYSTED: Why does the fact the [sic] he is a friend of Miguel cause you concern?

THE INTERPRETER: It was this Miguel Baljero had been caught by the authorities and he was claiming that I was the open [sic] that informed the authorities.

MR HOYSTED: Miguel is claiming that or his friend is claiming that, is he?

MR HOYSTED: Is Miguel - is he the chap who is the MPA [sic] person?

MS MONIS: I do not know what he is in the MPA [sic].

MS MONIS: I understand that was 1996 February 26, Monday.

MR HOYSTED: Did anything happen to you before you left?

MR HOYSTED: You just received a telephone call. What did they say in the telephone call?

MS MONIS: Just saying 'Be careful. Something will happen to you.'

MR HOYSTED: How many calls do you get? Sorry, how many calls did you get?

MR HOYSTED: When wast he last - when did you get the last call?

MS MONIS: The last call - I think it was April - April 16, 1996. I think was Tuesday.

MR HOYSTED: Did you talk to the police about the calls?

MS MONIS: I am afraid to go to the police like in the Philippines, if you do not have money the police will not entertain you and they do not hear your problems.

I am very much afraid of going home because I know that if I go home I might be killed. I no longer have peace of mind, I cannot sleep, thinking that the next day I will be killed.

13. On 24 June 1997 the RRT affirmed the delegate's decision to refuse a protection visa to Ms Monis (T13). In his statement of reasons justifying this decision the RRT Member said that he was not satisfied that there was any real chance that Ms Monis would be persecuted on return to the Philippines, nor that she was a major enemy of the NPA. Her contact with the NPA had been short and inadvertent and the NPA had not caused her any actual harm before she left the Philippines. The Tribunal was not satisfied that there was any real chance that Ms Monis would be tracked down and harmed by the NPA should she return to another part of the Philippines (T: 106-107).

14. On 24 July 1997 a request was made by Ms Clara Swasin, on Ms Monis' behalf, for the Minister to exercise his public interest power under s417 of the Act following the unsuccessful RRT review. In making this request Ms Swasin stated that:

(Ms Monis) left the Philippines with her young daughter as she was in fear of her life from the members of the New People's Army. She had no previous connections or dealings with the communist group but because her childhood friend with a companion came and stayed with her in her house and were later captured, she was suspected of turning them over to the government authorities.

She believes that if she returns, she will be seriously harmed by other members of the New People's Army as she has been threatened through various phone calls. This has created in her mind a feeling of insecurity regarding her future existence.

Because she is a single mother, she falls under the guidelines for humanitarian recommendation as her particular circumstances and personal characteristics provide a sound basis for expecting to face significant threat to personal security on return as a result of her act of giving favour to a friend.

15. On 1 August 1997 Ms Monis was granted a Bridging Visa E (BVE) which was valid until 30 October 1997 but did not include a right to work (T18). On 21 August 1997 Ms Monis applied for work rights but this application was refused on 13 October 1997 (see T23; T25).

16. On 31 October 1997 Ms Monis applied for a further BVE and again applied for permission to work (T27). The BVE was granted to 15 January 1998 but permission to work was refused on 22 December 1997 (see T26; T30-31). On 16 January 1998 Ms Monis was granted a further BVE until 16 March 1998 (T34). Ms Monis was again refused a right to work (T35). On 27 January 1998 the Minister decided not to consider exercising his discretion under s417 in favour of Ms Monis (T36). Ms Monis was advised of this decision by the Minister in a letter dated 6 February 1998 which asked her to contact the nearest Department of Immigration and Multicultural Affairs (DIMA) office to discuss her status in Australia (T: 152).

17. On 16 March 1998 a further BVE was granted to Ms Monis to 10 May 1998 on the understanding that she was making arrangements to depart Australia (T38-39). This BVE also did not contain a condition permitting Ms Monis to work. On 7 May 1998 a final BVE was granted to Ms Monis to 17 May 1998, on which date she departed Australia (T40; T55).

18. On 3 August 1998 Ms Monis lodged a subclass 300 (prospective spouse) visa application with the respondent's officials in Manila (T: 190; T44). Mr May had at an earlier date already lodged a sponsorship for his fiance to migrate to Australia (T43). On 6 August 1998 Ms Monis was interviewed in Manila by an Australian immigration officer, regarding her visa application (T:257-258). In the course of that interview Ms Monis disclosed that the application for a protection visa had been completed by a migration agent to whom she had been referred, Mr Teddy Gonzales. She also stated that the claims that she had made in the protection visa application were false and had been fabricated by Mr Gonzales.

19. On 10 August 1999 Ms Monis was again interviewed by an Australian immigration official (T: 259-260). In this interview she again admitted that the original protection visa application had contained false claims. She further admitted that she had continued to maintain that these claims were true in her dealings with the RRT, and in her application seeking the exercise of the Ministerial discretion.

20. On 27 August 1999 the Minister's delegate, Ms Sally Reay-Young, refused Ms Monis' visa application on the grounds that she had failed to pass the character test. The Minister's delegate also declined to elect to exercise her discretion not to refuse the granting of the visa under s501 of the Act. In reaching this decision Ms Reay-Young noted in her assessment that she had taken into account the following considerations regarding the past general conduct of Ms Monis:

* She freely admitted to knowingly providing false information in her application for a PV;

* She knew and has freely admitted that in lodging the PV application she was wrongly applying for Australia's protection as a refugee;

* She freely admitted that she did not consider she was a refugee at any time prior to the lodgement of her PV application or, at any time during the processing of her application;

* DIMA and the Refugee Review Tribunal (RRT) contacted her in writing on a number of occasions;

* She attended an interview for her PV application and deliberately misled the DIMA officer through the whole interview;

* Notwithstanding the proceeding fact, she did not advise DIMA or the RRT at any time during the processing of her PV application ,or at any other time, that her claims for protection were bogus;

* Ms Monis freely admitted that the sole purpose for applying for a PV was to extend her stay in Australia for as long as possible so she could legally work under the provisions of a Bridging Visa associated with her PV application

13. I have taken into account the following considerations in assessing the present general conduct of Ms Rebecca Monis..

* Ms Monis is planning to marry Mr May. The relationship appears to be genuine.

* Ms Monis stated that she was sorry for her actions in Australia.

14. I find that the applicant, by applying for a PV on bogus grounds and securing work rights under a Bridging Visa, was successful in her attempt to extend her stay and work in Australia. I find the applicant sought and gained entitlement under Australia's immigration laws she otherwise would not be entitled to.

15. I find that Ms Monis was not truthful in her dealings with the department with respect to her application for a PV. I have taken into account that significant resources were deployed to resolve Ms Monis' status in Australia. Notwithstanding Ms Monis' apparent remorse for her actions, I find that Ms Monis' general conduct demonstrates a blatant disregard for Australian immigration laws.

15. Having regard to Ms Monis' past and present general conduct in Australia and based on the evidence before me I find that Ms Monis is not of good character in relation to her past and present general conduct and as such fails to satisfy me that she passes the character test.

21. On 20 September 1999 Mr May, the review applicant, sought a review by the Tribunal of the delegate's decision (T1).

22. In order to be granted a subclass 300 (prospective spouse) visa the applicant must satisfy the relevant public interest criteria, including item 4001 in Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under s501 of the Act to refuse to grant a visa.

(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) 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

24. Thus the issue which the Tribunal must determine is whether Ms Monis does not satisfy the character test for the purpose of s501(6)(c) of the Act. If the Tribunal is satisfied that Ms Monis does not satisfy this test then it may nevertheless exercise the discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Ms Monis.

25. Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction was given by the Minister under s499 of the Act on 16 June 1999 titled "Visa Refusal and Cancellation under Section 501 - No.17" (the Policy Direction: T5). The Preamble to the Policy Direction states, in part:

This Direction provides guidance to decision to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).

The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.

Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.

The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.

26. Reference will be made later in this decision to those provisions of the Policy Direction which are relevant to the Tribunal's consideration of the present matter. But first the Tribunal turns its attention to the evidence presented concerning Ms Monis and the application of the character test under s501.

27. As noted it was the general contention of the respondent that Ms Monis does not pass the character test pursuant to s501(6)(c)(ii) of the Act on the basis of her past and present general conduct. Paragraph 1.9 of the Policy Direction has the following to say about the way in which decision makers should apply the character test under this particular head.

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 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 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 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.

1.11 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).

29. In both its Statement of Facts and Contentions, and in the presentation of its case at the hearing, the respondent indicated that it was principally paragraph 1.9(a) and (b) of the Policy Direction which were most relevant to Ms Monis. While not disputing this, the applicant's case proceeded on the basis that there were countervailing factors which would justify a finding by the Tribunal that Ms Monis did meet the character test.

30. The claims that were made by Ms Monis at the time of lodging her protection visa application have already been set out in detail. In her personal testimony to the Tribunal Ms Monis stated that she had come to Australia on her visitor's visa, in company with her daughter, in order to stay with her relatives who she had not seen for many years. Upon her arrival on 26 June 1996 she had gone to live with these relatives - her two sisters and a brother. She then decided that she wished to stay longer and was then told by a friend of one of her sister's that there was somebody who could help her assist her. That person was Mr Gonzales.

31. Ms Monis said that in company with her brother and one of her sisters she had gone to see Mr Gonzales at his office in Blacktown. She said that she was told by Mr Gonzales that she could prolong her stay by applying for a protection visa. She said that Mr Gonzales had not explained what a protection visa was but at the time she thought that it would allow her to stay for around two years and Mr Gonzales had also said that in some cases his clients had been able to stay for up to five years. She said that she trusted Mr Gonzales because he was a solicitor and was also a Philippino who was able to speak to her in the dialect that she used in the Philippines.

32. Mr Gonzales had then asked her to fill in the application form and she was also given a piece of paper from which to copy certain information onto the form. A payment had been made to Mr Gonzales of $1700 for her own application and $700 for her daughter. This payment was made in cash and no receipt was received.

33. Ms Monis said that she had no suspicions that what she was doing was wrong or that the making of the application would cause future problems. She said that after she had been notified of the refusal of her protection visa application she had gone to see Mr Gonzales again and that he had once more provided her with a piece of paper to copy out information onto her request for a review by the RRT. She said that at the hearing by the RRT she had maintained the story that had been contained in her application. She admitted she had not told the truth but said that she was confused and afraid (see in general transcript 24 February 2000: 30-37).

34. Ms Monis said that after the RRT had refused her application she had gone to see another solicitor. She had told that solicitor about the story which had been contained in her original application and also informed her that the story had been made up. She said that during the time that she had been making her application for a protection visa she had permission to work but that permission had ceased in about July 1997 after the RRT's rejection of her case. She said that she had continued to work nonetheless because she needed the money to pay for her living expenses including her daughter's school tuition. She said that she was also sending money back to her parents in the Philippines, as were her brother and sisters. She contributed about $125 every two weeks to these payments (transcript 24 February 2000: 30-39).

35. Ms Monis was cross-examined by Ms Kapel regarding her application for a protection visa. Ms Monis admitted that she knew that she was telling a lie when she filled out the original application form and confirmed that she had also been told to memorise the story that she had provided. She said that she had continued to lie before the RRT. She also admitted that the statement that had been made on her behalf by the solicitor seeking the consideration of her case by the Minister was untrue. She had found this new solicitor through a friend. She also again stated that she had continued to work although realising that she did not have a visa which permitted such activity (see in general transcript 24 February 2000: 44-48).

36. Ms Monis was also asked a series of questions by the Tribunal about just when she had formed the intention to seek to obtain work in Australia. The following exchange then took place:

Well you knew that the visitor's visa that you had obtained did not allow you to work, is that correct?---Yes, I mean when I went there in Australia, I didn't, I don't have the knowledge to work and then when somebody told me that I can get a visa with worker's permit, I did that, sir.

That person was Mr Gonzales, who you went to to obtain that assistance in getting a visa to work. You have told the Tribunal that, that is correct, is it not?---Yes, sir.

Ms Monis, have you heard of the term, a fixer?---A fixer?

A fixer. What do you understand by the term, fixer?---I understand fixer was the person who will fix your papers up, sir.

Is a fixer a term that is used in the Philippines for people who- - -?---...sir.

Now you have admitted that you filled in the application form using words that had been prepared by Mr Gonzales and also that you then made an application, one that that particular protection visa was refused to the Refugee Review Tribunal and also that you then went on and made an application for the exercise of the Minister's discretion. You say now that you realise that you have made mistakes. What did you mean by the word, 'mistake', what mistakes did you make/---Mistakes means, meant that I find ... mistake when to the Immigration, sir. There I did not tell the truth, sir.

Is that a mistake, not to tell the truth?---Yes, sir, as far as I'm concerned, sir.

When did you first decide that it was a mistake that you had made?---I only realised it was a mistake when this was already happened, they set up a program ... sir.

So you are saying up until that time, you didn't realise that it was a mistake not to tell the truth?---Pardon, sir.

It is only when you started to have these problems, you are saying, that you realised that you made a mistake and that mistake was not to tell the truth?---Yes, sir.

37. It was not a matter of dispute between the parties that a genuine relationship existed between Mr May and Ms Monis (see transcript 25 February 2000: 99). Mr May gave personal testimony to the Tribunal about the way in which he had met Ms Monis at his workplace in September 1996. They had gone out as friends from about September 1997 onwards. He said that he had proposed to Ms Monis on 26 January 1998. Ms Monis had said she would let him know about his proposal in a few days time. Several days later Ms Monis told him that she was not a permanent resident in Australia, that she would have to go back to the Philippines and that there might be a few problems but she did not elaborate on them. Three or four days after this conversation Mr May said that he had told Ms Monis that he wanted to know exactly what the problems were and that she then told him that she had gone to a solicitor and that he had given her some bad advice. At the time Ms Monis said that she had not known any better and she thought that the advice was normal in regard to an application for a protection visa. She said that she had made a mistake and had not wished to lie (see transcript 24 February 2000: 9-10).

38. Mr May said that he believed Ms Monis to be a person who was very honest in everything that she did. Apart from the way in which she had behaved in relation to her protection visa and related applications he did not know of any occasion when she had lied deliberately. The Tribunal also received 20 written character references from a variety of people who were familiar with Ms Monis in both Australia and the Philippines (see A1). These references indicated that she was believed to be a person of good character and with strong religious beliefs. The references included a statement by Father Nards Mercene, Filipino Catholic Chaplain to the Archdiocese of Sydney, which indicated that he had known Ms Monis for a period of two years while she was in Australia and that:

She was very much involved with the Filipino Catholic Community because her sister's family is active in all the religious activities of the Filipinos and the local church.

She will be a big help and inspiration for the community if she will be allowed to come back and stay with us.

39. Another reference was received from Mr Wilson Chu, President of Walden Textile Industries, Inc. in the Philippines, which indicated that Ms Monis had been working with this company as an accountant since July 1998 up until the present time and that she was an employee who was trustworthy, industrious and capable (A2).

40. Personal testimony was provided by three witnesses concerning their knowledge of Ms Monis and her character. Ms Maria Stegeman said that she had been the person who had recruited Ms Monis in December 1996 to work with MQF Pty Limited in the company's accounts payable section. She had been a valued employee who was hardworking and enthusiastic. She had never doubted her honesty and she had been shocked to learn that her migration application had been refused on character grounds (see transcript 24 February 2000: 60-65; A8). Questioned by Ms Kapel, on behalf of the respondent, as to whether she had asked Ms Monis about her immigration status at the time of her hiring, Ms Stegeman said she had not. She had been recommended by a fellow Philippino employee of the company who had approached her and said that he had a friend who was from the Philippines who was looking for work. She also said that she was not aware that from August 1997 until April 1998 Ms Monis did not have a work permit which would permit her to be employed by her company. She said that she was disappointed to learn of this (see transcript 24 February 2000: 65-66).

41. Ms Susan Cha Yao told the Tribunal that she had known Ms Monis for about 14 years. She had first met her when working at the same company in the Philippines. They had formed a close relationship and attended church on a regular basis together as well as various social and family functions. She had come to Australia in 1992 and when Ms Monis arrived in this country in 1996 they had renewed their relationship. She viewed Ms Monis to be a person of the highest character (transcript 25 February 2000: 80-85; A9).

42. Mr Rodante Monis, Ms Monis' brother, also gave personal testimony which included a description of his participation in a meeting with Mr Gonzales at the time that the original application had been completed for a protection visa. Mr Monis said that he had paid the lawyer's fee for this service. Mr Monis said that he had also accompanied his sister on two later visits to Mr Gonzales' law office. He said that they all trusted Mr Gonzales:

Because we believed - because he - the fact that he came from the same place as us and we totally trust him because we know that he is looking after us really good, the fact that we - we came from the same place.

43. Mr Monis said that his sister was a nice person who did not want to do something wrong but rather always wanted to do the right thing. The Tribunal then questioned Mr Monis about a statement that he had made in a written declaration (A9). In that declaration he had said that Ms Monis had simply made the mistake of relying upon someone who she trusted to give her the right advice. Mr Monis said that he had meant:

Well, the fact that my sister does not know nothing about it, this visa when we went to this lawyer, we totally dependent on the lawyer and we believe at the time that she was giving my sister the right thing, not making any kind of mistake.

Well, what the right advice that she got at the time?---Well, we believed that when she made this application, that was the right advice. We never thinking that is the wrong one or whatever, we believed the lawyer's telling us the right thing.

44. The meaning of the term "good character" as used in s501 of the Act is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court (see Minister for Immigration and Ethnic Affairs v Baker 1997 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs 1996 68 FCR 422 (hereinafter Irving).

45. During the course of their submissions both of the parties made reference to Baker and Irving. Mr Poynder drew the attention of the Tribunal to the following description given of the term "good character" in Irving by Lee J:

Unless the terms of the Act and Regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be provided as a fact whilst the latter is a review of subjective public opinion. See Clearihan v Registrar of Motor Vehicle (ACT) (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1009 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, see Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 416, per Latham CJ at 416; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

46. Mr Poynder indicated that this statement by Lee J had been approved by the Full Federal Court in Baker and more recently by the Full Federal Court in Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277. In the latter decision, in a joint judgment Spender, Drummond and Mansfield JJ had said:

The concept of 'good character' in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.

47. In her submissions made on behalf of the respondent, Ms Kapel referred to the statement made in Baker concerning the way in which a person's general conduct should be taken into account when assessing whether or not they were of good character. In Baker the Full Federal Court said:

We do not think there is any warrant for extracting from the broad word 'general' a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. 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.

48. Ms Kapel contended on behalf of the respondent that Ms Monis should be found by the Tribunal to have not passed the character test pursuant to s501(6)(c)(ii) because of her past and present general conduct. Paragraph 1.9 of the Ministeral Direction had listed the factors that were to be considered by decision makers and provided that in the absence of countervailing factors they should constitute a failure to pass this character test. It was apparent that Ms Monis had failed to satisfy paragraph 1.9(b) in that she had, as a non-citizen, in connection with applications for the grant of a protection visa made false or misleading statements on a number of occasions. The gravity of her conduct was illustrated by the penalty that attached to anyone convicted under the provisions of s234 of the Act which made it an offence for making or causing to be made to an officer or a person exercising powers performing functions under the Act a statement that, to the persons knowledge, was false or misleading in a material particular. Upon conviction of such offence the maximum penalty was ten years imprisonment or 1,000 penalty units. Section 492 of the Act further provided that a prosecution for an offence against the Act or its Regulations could be initiated at any time within five years after the commission of that offence. In Ms Monis' case, contended Ms Kapel, her false statements had been made during the period 1996-97 and accordingly the five years period proscribed by s492 of the Act had not yet expired.

49. Ms Kapel also submitted that Ms Monis had exhibited a blatant disregard for the migration laws of Australia when she continued to work illegally for a period of nine months following the unsuccessful bid she had made for a protection visa. Having regard to all of the evidence that had been presented to the Tribunal it should not be satisfied that the applicant has passed the character test. Ms Monis had through her general conduct disclosed a propensity to lie and there were not any countervailing factors to dispel this evidence of bad character. Ms Monis' admissions of telling lies at her interviews in the Philippines were in fact a last resort to migrate and her remorse about her conduct was more the result of the difficulties she now found herself in rather than for having done something wrong. The character witnesses who had appeared on her behalf did not know the true extent of her actions.

50. In his submissions made on behalf of the applicant, Mr Poynder acknowledged that the Tribunal might be concerned when making its assessment of whether or not Ms Monis' general conduct showed her to be a person of bad character with the false statements that she had made in her visa application and also her period of working illegally. Mr Poynder submitted that both of these behaviours of Ms Monis should be viewed as an extended instance of bad conduct which had to be weighed up in the context of the circumstances of the occasion and her overall character.

51. In the present case Mr Poynder submitted that the evidence had not revealed a person who lied and deceived but rather pointed to a person who had been honest. Apart from the general character references that had been presented there was also evidence that she had made a genuine application for a visitor's visa to visit her family. She had then made a mistake, when that visa was about to expire, of applying for a protection visa. While it was conceded that she had worked illegally for a few months during the time that she had a bridging visa she had not overstayed that visa and had departed the country of her own accord. Then when she had applied for her spouse visa she had freely admitted to her past conduct.

52. With the judicial benchmarks of Irving, Baker and most recently Goldie clearly in mind the Tribunal is more than satisfied on the evidence before it that Ms Monis fails to meet the character test as a result of her past and present general conduct. There are in fact a number of instances of general conduct engaged in by Ms Monis that lay her "character bare very tellingly". Those instances commenced with her admitted participation in the preparation and filing of a false application for a protection visa in September 1996. In the course of her personal testimony to the Tribunal Ms Monis professed to have no understanding of what a protection visa involved and suggested that she had mistakenly relied upon the advice of her lawyer Mr Gonzales. The Tribunal simply does not believe this assertion by Ms Monis, nor her assertion that once embarked upon this deceitful conduct she was either too confused or afraid to reveal the nature of the false claims being made to the RRT at its hearing, or when subsequently seeking ministerial intervention under s417 of the Act. Ms Monis did not impress the Tribunal as a naive or unintelligent witness. She is an university graduate with a specialist qualification in accounting and has occupied a number of positions of trust and responsibility in her employment in the Philippines and in Australia. The Tribunal believes that Ms Monis is a person who is willing to tell lies when it is convenient, and also to tell the truth if she believes it will further her own objectives.

53. The nature of the false claims made in the protection visa application, and in the subsequent application for review by the RRT, have been set out in some detail at the outset of this decision. They are not simple claims but rather ones which reveal an understanding of the basic requirements of establishing prima facie eligibility for a protection visa and maintaining that eligibility through the review process. Ms Monis may have been assisted in concocting these false claims by her legal adviser but she was a willing and continuing participant in this deceitful behaviour. Her acknowledged aim was to secure time in which to work in this country and she was assured that by proceeding in the way that she did she would gain at least two years or more residence in Australia. She was further prepared to lie under oath at the hearing conducted in the RRT, and to then pursue another avenue of review by the Minister when she failed to achieve her objectives before the RRT. She was even prepared to utilise her child as an additional ground for humanitarian consideration in the plea made on her behalf to the Minister.

54. In addition to these cynical and blatant forms of deceit Ms Monis was also quite willing to continue to work for a number of months after her work permit had expired. She described these actions on her part in general as mistakes. She also sought to place the blame for this deceit in large part on the bad advice that she had been provided by Mr Gonzales. In the Tribunal's opinion Ms Monis, even at the time of giving her personal testimony, failed to demonstrate an understanding of the true nature of her conduct and its reprehensible qualities. The countervailing factors offered on her behalf that she is now a person who displays the enduring moral qualities of someone who is of good character carry little weight. A large number of persons who provided written character references appear to have had little if any knowledge of the nature and extent of Ms Monis' pattern of deceit. Among the witnesses who gave personal testimony about their knowledge of Ms Monis' character, Ms Stegeman, who was neither a personal friend nor relative, acknowledged that she had not been aware of Ms Monis' immigration malpractice and, in particular, her continuing to work while not having a valid work permit.

55. The Tribunal also is of the opinion that Ms Monis' subsequent disclosure of her immigration misdeeds during the course of her interviews in Manila was no more than an attempt on her part to place herself in the most favourable situation to obtain a spouse visa, rather than a genuine expression of contrition and remorse which flowed from her past misdeeds.

56. Having not been satisfied that Ms Monis passes the character test the Tribunal must now determine whether it should still exercise its discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Ms Monis. The Policy Direction refers to a number of factors to which decision makers should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations. The Policy Direction notes that:

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 important placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

57. The three primary considerations to which the Tribunal must have regard are:

the protection of the Australia community, and members of the community;

the expectations of the Australian community; and

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.

58. In the present case each of these primary considerations require attention. In regard to the first, the protection of the Australian community, the Policy Direction notes the following:

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 at 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:

(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).

59. Among the examples given by the Policy Direction of offences which are considered by the Government to be very serious are:

(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.

60. The nature of the conduct engaged in by Ms Monis has already been set out in considerable detail. It is clear that this conduct falls within that described in paragraph 2.6(c) of the Policy Direction even though it was acknowledged by the respondent that she had not been prosecuted nor convicted of any specific crime under the provisions of the Act. In her submissions made on behalf of the respondent Ms Kapel referred to a number of decisions of the Tribunal in which the importance had been stressed of the observance of truth in dealing with officials in migration matters, especially where the truth is known only to the person making the statement: see Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148; Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780; Naidu v Department of Immigration and Ethnic Affairs (AAT 9753; 27 September 1994) and Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997).

61. Ms Kapel also submitted that Ms Monis' actions were characteristic and concomitant with the actions of other Filipino citizens who had sought to gain entry to or remain in Australia by unlawful means. On this particular issue the Tribunal received personal testimony, as well as a written statement (R1), from Ms Sally Reay-Young, the original decision maker in the present case and the First Secretary (Immigration) and Principal Migration Officer (Compliance) at the Australian Embassy in Manila.

62. Ms Reay-Young indicated that she was responsible for reporting on immigration matters from the Philippines including providing information on trends in fraudulent practices within the immigration caseload. In fulfilling this function she liaised closely with colleagues of the Department of Foreign Affairs and Trade (DFAT) as well as with colleagues in other diplomatic missions in the Philippines. In her post at the Australian Embassy Ms Reay-Young said she had dealt with over 1,000 visa applications ranging from visitor visas to spouse visa applications. Based on her experience Ms Reay-Young said that Manila was viewed as a high risk and high volume post. The poor economic climate of the Philippines and the acceptance of corruption seemed to encourage applicants to obtain visas through illegal means.

63. Ms Reay-Young said there was a strong culture of working overseas to remit money back to the Philippines. One of the major issues that she confronted in her duties in regard to visitor applications to Australia was that people claimed that they were going to Australia to visit family, and were often sponsored by their family members, and then attempted to find employment in Australia. In her written statement Ms Reay-Young said that:

18. ...One of the most common ways for Filipinos to obtain permission to work is to apply for a protection visa. Most typically the applicant lodges a review with the RRT if the application is refused and then seeks Ministerial intervention under s417 of the Migration Act. The whole process takes approximately 2 years. It is interesting to note that only 3 protection visa applications lodged by Philippine nationals were granted in 1996-97 and none in subsequent years.

19. Upon return to the Philippines many previous PV applicants will apply for migration to Australia on spouse grounds. 97% of these have admitted that they willingly submitted false claims through the whole PV process to obtain permission to work. Whilst some advise that their agent assisted with the preparation of the application most admit that they know they are applying for refugee status and that they will do anything to be able to work in Australia.

27. A significant problem with the spouse caseload is that a significant number have previously applied for protection and have gone through the whole review process and have admitted on interview for their spouse application that they provided false and misleading statements (as mentioned above in the visitor section). These cases are assessed under the character provisions within the Migration Act. These case are extremely resource intensive.

64. In the course of giving her personal testimony to the Tribunal Ms Reay-Young was asked further questions about the perception that Filipinos had about the ease with which they could circumvent Australia's immigration laws. Ms Reay-Young said:

Yes. Yes. Australia, despite us trying - doing out best, are seen as the soft option amongst the US Embassy, the Canadian Embassy, and the Australian Embassy. Even the New Zealanders and the British - out of all of them the Australians are seen as the soft touch. And that's now - the refusal rate for a visitor visa is often about 30 per cent and they still see that we are a soft touch and that is primarily because they know that they can get a visitor visa and then go to Australia and work for 2 years. So it's --and the problem is that in Australia as well the applicants will say in Australia as well: there are lots of people there who will .... with this whole process, it's sort of - it's a well-known route to get into Australia. Yes.

In what way would a refusal have a deterrent effect on others considering this course of action?---Well, I mean if people realise that - I mean, most of the - some of the applications for spouse migration are genuine and if only they would realise that if they went for a visit, came back to the Philippines, they could get another visitor visa, come back to the Philippines, and then apply for a spouse migration. They've done nothing wrong at all and they would - if the case was genuine they would - they would get a migration visa to Australia. If people realised that if they do the wrong thing and there was somebody else doing the wrong thing, if they all do the wrong thing, unless they get into trouble for doing the wrong thing then it is going to be a deterrent factor. If one person is in trouble then, you know, that doesn't mean much but if it's a significant number who are doing the wrong thing and then they do have trouble - you know, get into trouble, whatever the term is, then it is - it will be widely known within the Australian community as well as the Philippine community and that is certainly what's happening. There's a number of Philippine commentaries from New South Wales who are now saying that Manila is getting tough on people who are applying for refugee status and they are now saying, and it's in a lot of the Philippine newspapers, they are now saying don't do the wrong thing, don't lie, do the right thing, be honest, and so it is having an effect.

And the word is spreading?---Yes, yes, it is spreading. Yes.

65. In his cross-examination of Ms Reay-Young, Mr Poynder asked whether there was a strong Filipino community network in Australia which was familiar with Australia's immigration laws. Ms Reay-Young said there was. She also agreed that there were a number of migration agents of Filipino origin who would assist Filipino applicants in Australia. She also admitted that the government was concerned that many of the false protection visa applications were being filed through these Filipino migration agents and that there was an extensive investigation in progress into their activities. Ms Reay-Young added:

Yes, and it is continuing. They're doing something at the moment trying to deal with these people. But I might just say that we were very careful when looking at all of these cases to not only refuse under section 501 those applicants who admitted that not only had they gone to an agent but they knew exactly what was happening and quite often the agents would give them a story to copy out in handwriting. And so we believe that if the applicant is writing out that statement, be it true or false, if they're writing out that statement then they'd know what they are doing. And particularly what tends to happen is that they'll go to one agent for the first application, for the protection visa application, when that's refused they get disappointed with that agent and will go to another agent to try and, you know, continue with the system. So they are using - they are choosing to do it themselves as well and we've been very careful with that. If anybody has been, I guess what the term they use here is 'victimised' by an agent and they don't know what they really are doing and they can't explain what the claims were that they conceded or put down on the application form, then we don't refuse under 501.

But you agree that the stories are being concocted by the migration agents then?---What happens - what some of the applicants have said is that the agent will say: well, we need - you know, you want to stay in Australia, we need to make up some claims, tell me something that's happened in your life and then the agent will assist in developing that story.

Yes, on occasions though migration agents simply give them a ready-made story, is that no true?---Sometimes, yes.

And some of these stories come up again and again?---Yes. Yes, the NPA.

I'm sorry?---The NPA is the standard story which is a communist sort of group in the Philippines.

Yes. Approximately how many migration agents would be being investigated in this respect?---I can't say how many are being investigated now. I sent down a list of all of the protection visa applicants from the Philippines and the agents that they used and that would be probably about five, and I know that they have actually dealt with two agents previously. One was convicted and one was not convicted.

Could you tell us the names of the one who was convicted and the one who wasn't?---Able Miranda.

Yes. Was - I'm sorry, who was that?---Able Miranda.

Was his licence cancelled as a result of his conviction?---Yes.

Yes. Were charges brought against Mr Gonzales?---Yes, but he wasn't convicted of anything.

66. Ms Reay-Young said that the case involving Ms Monis had not been among those which had been referred for investigation as part of the proceedings brought against Mr Gonzales (see transcript 25 February 2000: 74-75)

67. Following this testimony provided by Ms Reay-Young the Tribunal asked the respondent to determine whether there was any further information which might be provided about the nature of the investigation and the allegations that had been made against Mr Gonzales. At the conclusion of the hearing it was agreed between the parties that if any such documentation could be provided in a timely way both the applicant and the respondent would have an opportunity to make whatever further submissions they wished in regard to any information obtained (see transcript 25 February 2000: 126).

68. On 9 March 2000 the respondent did produce to the Tribunal, and to the applicant, a number of documents relating to an investigation made of a complaint made about possible migration malpractices by a registered migration agent, Mr Teddy Chua Gonzales. One of the documents was a detailed report by an investigating officer recommending Gonzales prosecution based, in part, on his alleged participation in the preparation and submission of unfounded protection visa applications (report dated 23 June 1997 by S. O. Wells, Investigation Section, New South Wales, DIMA).

69. In further submissions made on behalf of the applicant following the receipt of this additional documentation Mr Poynder contended that the new documents corroborated the evidence provided by Ms Monis and her brother about the actions of Mr Gonzales and the trust that they had placed in him. Mr Poynder also noted that the investigation report contained a recommendation that there not be prosecution of any of Mr Gonzales' clients for making false statements under s234 of the Act because of the difficulties of establishing the requisite mental element. Mr Poynder submitted that this was an independent expert opinion which suggested that Ms Monis would also not be criminally culpable for her actions.

70. In relation to the other matters referred to under the heading of the protection of the Australian community within the framework of the Policy Direction it was not contended by the respondent that there was a likelihood that Ms Monis would repeat her conduct (Policy Direction: paragraph 2.10). It was contended, however, that the issue of general deterrence was very relevant in Ms Monis' case given the evidence from Ms Reay-Young about the nature and extent of migration fraud emanating from the Philippines. A refusal of a visa in this case would send a strong deterrent message to persons contemplating similar actions that they would not succeed in circumventing Australia's immigration laws.

71. Mr Poynder did not demure from the assertion that a general deterrent effect might be achieved by denying Ms Monis a visa but he also contended there were much more serious cases of migration fraud than hers and that this was not a factor which should be given significant weight.

72. In the submissions made on behalf of the respondent, Ms Kapel contended that the Australian community would expect that Ms Monis would not be rewarded for her conduct while in Australia. The Australian community would expect Ms Monis to be refused a visa to enter and remain in this country.

73. In his submissions, Mr Poynder disputed that the only expectation of the Australian community would be to deny Ms Monis a visa. Rather, contended Mr Poynder, the Australian community would expect that a non-citizen who was in a genuine continuing relationship with a citizen should be entitled not to be denied access to that relationship. Mr Poynder also referred to the International Covenant on Civil and Political Rights, and the general principle contained in Article 23 of that document, which referred to the importantance of protecting the integrity of the family unit.

74. The third primary consideration to which the Tribunal must have regard is the best interests of Ms Monis' daughter, Jharizz. It was conceded by Mr Poynder, that this particular consideration was of less weight in the circumstances of this case although there was some relevant evidence about a relationship developing between Mr May and Jharizz, with the potential for a family unit being established which would be in her best interests.

75. In her submissions, Ms Kapel noted that Jharizz, like her mother, was not an Australian citizen and her natural father lived in the Philippines as did her grandparents. There was no evidence of a close relationship between Mr May and Ms Monis' daughter and the child's interests would not be affected by the extended separation of Ms Monis and Mr May. It would also be in the best interests of Jharizz if she were to remain in the Philippines where she had strong social support and had spent the majority of her childhood.

Rokobatini v Minister for Immigration and Multicultural Affairs

At a glance

Court

Decision date

Source

Judgment (225 paragraphs)

May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 (15 June 2000)

Parties

Cases Cited (2)