31. I turn now to the discretion and its exercise. Having not been satisfied that Ms Gawronski passes the character test, the Tribunal must now determine whether it should still exercise its discretion under s501 of the Act not to refuse the grant of the visa in favour of Ms Gawronski. The Policy Direction refers to a number of factors to which the decision maker should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations. The Policy Direction states:

Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the government on the three primary considerations but it should also adopt a balancing process which takes into account all relevant considerations.

32. Bearing in mind these provisions of the Policy Direction, I turn now to the three primary considerations which are, first, protection of the Australian community and the members of the community; secondly, expectations of the Australian community, and thirdly, where there are children, the best interests of those children. In this case it is the first two of these primary considerations which require attention since it is not contended, as I understand it, that the applicant and her spouse have any children of their relationship.

33. In regard to the first matter which is of primary consideration, that is the protection of the Australian community, the Policy Direction says:

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 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; and

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

The Policy Direction gives an example, among others, of offences which are considered by the government to be very serious and they include

(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.

34. The nature of the conduct which was engaged in by Ms Gawronski during the time that she was in this country has already been set out in some detail. It is clear that this conduct falls within that described in paragraph 2.6(c) of the Policy Direction even though Ms Gawronski has not been prosecuted or convicted of any specific crime under the provisions of the Act.

35. In her submissions made on behalf of the applicant Ms Oag admitted that the conduct which had been committed by her client was serious. In a number of decisions the Tribunal has also stressed the importance 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: decisions such as 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 Annencchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997) are among those which are relevant on that particular point.

36. The Tribunal also received into evidence a written statement (exhibit R1) from Ms Sally Reay-Young, the First Secretary, Immigration and Principal Migration Officer, Compliance at the Australian Embassy in Manila. 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 case load. Her statement indicated that in fulfilling this function she liaised closely with colleagues of the Department of Foreign Affairs and Trade as well as with colleagues in other diplomatic missions in the Philippines.

37. In her post at the Australian Embassy Ms Reay-Young said she had dealt with over 1000 visa applications ranging from visitor's 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.

38. Ms Reay-Young said there was a strong culture of working overseas to remit money back to the Philippines and one of the major issues 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. They were often sponsored by their family members and then attempted to find employment in Australia. In her statement, Ms Reay-Young said:

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 section 417 of the Migration Act. The whole process takes approximately two years. It is interesting to note that only three protection visa applications lodged by Philippine nationals were granted in 1996-97 and none in subsequent years.

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

Then in a subsequent paragraph Ms Rae Young goes on to say that:

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...These cases are assessed under the character provisions within the Migration Act. These cases are extremely resource intensive.

39. In relation to the other matters which are mentioned in the Policy Direction regarding the protection of the Australian community, it was not contended by the respondent that there was a likelihood that Ms Gawronski will repeat her conduct. It was, however, contended that the issue of general deterrence was very relevant in Ms Gawronski's case. Given the evidence from Ms Reay-Young about the nature and extent of migration fraud emanating from the Philippines it was suggested that 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.

40. In relation to the second primary consideration, that is, the expectations of the Australian community, it was contended on behalf of the respondent in its Statement of Facts and Contentions (paragraph 40) that Ms Gawronski had exploited the trust of the Australian community by wilfully and illegally manipulating Australia's migration program for personal financial gain. It was further submitted that guests of Australia have the moral and legal obligation to abide by the law. Ms Gawronski had shown that she was not prepared to do so.

41. Apart from these primary considerations the Policy Direction also requires the Tribunal to consider what it terms "other considerations" which may be relevant to the exercise of the discretion under the Act. Paragraph 2.17 of the Policy Direction says:

It is the Government's view that where relevant it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These may include

(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

(b) genuine marriage to or de facto or inter-dependent relationship with an Australian citizen.

42. As I have indicated it was not a matter of dispute that this was a genuine relationship, and Mr Gawronski is an Australian citizen:

(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere,

(d) family composition of the non-citizen's family, both in Australia and overseas.

43. In relation to these particular points it was clear from the statement tendered on behalf of Mr Gawronski, the review applicant, that he would suffer significant disruptions and hardship in his life should the visa not be granted to his wife - points which were conceded, in fact, by the respondent. It was also submitted, on behalf of the visa applicant that there was evidence of recent good conduct in the form of Ms Gawronski's confession to wrong-doing and that this was another factor that should be taken into account.

44. I turn now to the balancing process which must be carried out in regard to the exercise of the 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 advice 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 now 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 to 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.

46. Thus in the present case the Tribunal is satisfied that there are not sufficient reasons why it should exercise the discretion in Ms Gawronski's favour and grant her the visa the seeks. The decision under review is thus affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell

Signed: .....................................................................................

Solicitor and Migration Agent for the Applicant Ms Belen Oag