IMMIGRATION & CITIZENSHIP - spouse visa - refusal on character grounds - whether visa applicant failed to meet the character test - false protection visa application - disregard for Australia's immigration laws - no exercise of residual discretion.

Migration Act 1958 - ss 417, 499, 501.

1. This is an application to review a decision refusing a spouse visa to Zenaida Bondoc Turini (formerly Mallari), the wife of the abovenamed applicant.

2. Mrs Turini was born in the Philippines on 8 July 1963 and remains a citizen of that country. She completed six years of primary school education and four years of secondary school education, followed by a further period of four years study at a university where she obtained a degree of Bachelor of Commerce in 1986. Thereafter she was steadily and constantly employed in various positions. Documents tendered at the hearing showed that she was employed as a merchandiser and later as a cashier and supervisor of staff at a cinema. She has always held responsible positions. After leaving the cinema she took up an agency with an insurance company selling policies for various purposes.

3. Late in 1995, she decided to come to Australia to visit her sister Rose, who was living here. She obtained a passport, visitor's visa and a ticket from a travel agent with money which she borrowed from Rose. She said in her statement of evidence that she was hopeful that she could work in Australia while visiting Rose but did not know anything about the rules which would enable her to obtain a work visa.

4. She arrived in Australia on 17 March 1996 and was met at the airport by her sister and her sister's friend Remy and then moved to live with her sister while she was in Australia.

5. The day after she arrived in this country she had a discussion with Remy, a fellow Filipino, who recommended to her that she should make an application for a protection visa. It is clear that this conversation must have arisen out of Mrs Turini's expressed desire to be able to work in this country. It is also clear that the way in which the application for a protection visa was to be prepared and presented was the subject of some discussion between Mrs Turini and Remy.

6. Ultimately an application for a protection visa was made in the prescribed form which Remy obtained from an immigration office. The form required the applicant to state why she left her country. The following was written in:

"1. I left my country because my fiance, Edison de la Cruz got in trouble for politics and did bad things and run away and hide. Government soldiers and police looking for him and they always give me problems and threaten me because they think I know where he is hiding.

2. The soldiers and police will keep giving me trouble because Edison helped kill some people in Zamboanga.

3. I will get trouble. I don't know where Edison lives but they think I do. They threatened to beat me and rape me if I did not tell them."

7. Mrs Turini has since admitted that the whole of the above is a fabrication. There was no such person or incident or fear. Mrs Turini agreed in evidence before me that she did not consider herself a refugee at the time. Nevertheless she signed the application form. She is, of course, an educated woman and agreed with me that she was quite able to read English. She thoroughly understood the words that were in the application.

"I did not then think deeply about what I was doing, but I cannot remember the thoughts that actually went through my head at that time. I was very much guided by Remy and I followed her instructions."

9. There can be no doubt that the form was completed as an adjunct to the acquisition of a bridging visa which would allow her to work in the meantime. Mrs Turini admitted as much at the hearing before me.

10. The following day on 19 March 1996, Mrs Turini, together with Rose and Remy, went to the Immigration Department to lodge the protection visa application. She paid her fee while her companions waited in the waiting area.

11. Two months later, in May 1996, she was interviewed concerning this application. She affirmed to the interviewer the truth of what had been written. She had the opportunity at that stage to retract but did not take advantage of it. As she said "I was afraid to confess to the truth". Nevertheless, she agreed during the interview that she did not fear harm for a "convention reason". The application was rejected on 28 June 1996.

12. Not content with the rejection of her unlikely application, she then consulted a person variously described as a solicitor or a migration agent, named Abel Miranda. He was known to have many clients from the Philippines and was recommended to Mrs Turini by members of that community. She met Mr Miranda to discuss what should be done to enable her to be able to continue to work. She did not tell him that the story in the protection visa application was false because, as she said in evidence, "he did not ask me". Mr Miranda instead simply told her that an appeal should be lodged to the Refugee Review Tribunal "so that I could keep working". He requested a fee of $1,500 which she paid him. The appeal was then lodged on 29 July 1996. She said in her statement "Mr Miranda gave me hope and made it so easy to do and I just followed his instructions". She was later advised that she was entitled to attend the hearing of the appeal, but declined that opportunity. Thus, she perpetuated the lie and neglected the chance to retract it before it went any further.

13. The application to the Refugee Review Tribunal was rejected on 17 March 1997. After a further consultation with Mr Miranda, she agreed with his advice to lodge an appeal to the Minister under section 417. A further fee of $500 was paid to Mr Miranda. In the meantime, of course, her bridging visa allowed her to continue to work. The section 417 request was not rejected until some nine months later on 14 January 1998.

14. The applicant first met Mrs Turini in April 1997 through mutual friends. They continued to meet throughout that year at parties and social events. On 12 April 1998, he attended a friend's christening at which she was present. Following this meeting, their relationship began to grow and develop. The applicant soon formed the intention to ask her to marry him. He formally proposed at a social gathering on 11 July 1998 and was accepted by her in front of their friends.

15. Prior to that time, Mrs Turini had told the applicant of her immigration problems in general terms. By July 1998, her application been rejected by the Refugee Review Tribunal and the Minister had rejected the further appeal some six months earlier. She told Mr Turini that her visa had expired. Although correct, this was not entirely frank. She was, in fact, in this country without legal permission and was continuing to work, contrary to the terms of her expired bridging visa and contrary to the terms of the Migration Act itself.

16. About two weeks after their engagement, they sought legal advice from a solicitor well experienced in the migration field. On 28 July 1998, they instructed him to act for them. One must assume that accurate advice was given concerning the necessity for Mrs Turini to leave the country and to the problems that she would encounter were she to apply to return.

17. Nevertheless, the applicant decided to fulfil his engagement and marry Mrs Turini. The ceremony took place at a church in Sydney on 5 September 1998 in the presence of a number of friends. During the honeymoon, Mrs Turini became seriously ill and had to return to Sydney for an immediate operation. After being discharged from the hospital on 15 September 1998, she returned to work where she was detected by immigration officers and was detained. She was then taken to Villawood.

18. By then, their solicitor was preparing an offshore spouse application and they were already intending to leave Australia. Mrs Turini left on 14 October 1998. Two days later, she made application for the spouse visa, the refusal of which is the subject of the present review.

19. An interview took place at the Australian Embassy in Manila. In her witness statement Mrs Turini said that she had had a full discussion about the background and circumstances of her protection visa application with the applicant before they married. They both decided that if she was interviewed, she would tell the truth. At the Australian Embassy she was questioned about the protection visa application and then, for the first time, admitted that the claims made in that document were lies. The delegate was satisfied otherwise that the marriage relationship claimed in the spouse visa application was genuine and no issue as to that fact has arisen in the course of these proceedings.

20. The visa application was ultimately refused on 17 January 2000 on the grounds that Mrs Turini did not meet the character test within the meaning of section 501 of the Migration Act 1958.

21. Since she returned to the Philippines, she has lived with her parents and sister-in-law and has continued to work in that country in the insurance industry. On many occasions during the course of her evidence, she expressed her sorrow and regret for what she had done and affirmed that she would not undertake similar conduct in the future.

22. I am first to consider whether Mrs Turini fails the character test on the ground that having regard to either or both of her past and present general conduct she is a person not of good character. In determining that question, I am bound to apply a Ministerial Direction given under section 499 on 16 June 1999. Paragraph 1.9 of that Direction requires me to consider certain matters where they are relevant and which would, in the absence of any countervailing factors constitute a failure to pass the character test. Among those matters are:

"(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."

23. The applicant's solicitor submitted that this should not be read literally. I agree that the use of the words "bogus", "false", and "misleading" would exclude accidental or unintended mistakes. There can be no doubt, however, that the statements made in the application for the protection visa in this case are clearly bogus. The statements made are not only relevant, but are integral to the application. There are no countervailing factors which would detract from the bogus nature of the statements made. Mrs Turini deliberately and knowingly was a party to a false claim made with no other intention than to enable her to work in this country until that false claim was finally resolved through the processes of law. During the carrying out of those processes, she had a number of opportunities to retract the falsity of her claims and to inject the frankness and openness that any government is entitled to expect in applications for visas. She compounded her initial lie over a period of some two and a half years.

24. The making of the bogus document was not only a breach of faith, it was a criminal offence. The making of a false or misleading declaration on an approved form carries criminal penalties. At the time these statements were made, the maximum penalties were two years for each offence. There are no countervailing factors of which any account can be taken. The solicitor for the applicant submitted that Mrs Turini did no more than many hundreds of other Filipino citizens. He stated that applications of this kind were quite common at the time and that Mrs Turini simply "got on the locomotive". To my mind this is a totally unacceptable excuse. To say that she would not have made such an application had there not been a fashion or practice in her community to do so in no way excuses her blatant manipulation of the immigration system.

25. The applicant's solicitor provided statistics related to sentencing in offences involving dishonesty pursuant to the Migration Act and the Crimes Act and declared that on his understanding of these statistics, Mrs Turini, if prosecuted, would have received a custodial sentence substantially less than twelve months and that, therefore, her conduct should be regarded as considerably less culpable than the conduct of a person who had a substantial criminal record as defined by section 501(7), that is to say if a person had been sentenced to a term of imprisonment of twelve months or more. I am unable to follow the tortuous reasoning behind this submission. As Davies J pointed out in Beckner v Minister for Immigration [1991] FCA 264; (1991) 23 ALD 556 at 558, the function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. I would respectfully add that it is also quite different from an administrative review of a decision to refuse an application for a visa. His Honour pointed out that matters which may be of great significance in the administrative decision may be of little significance to a sentencing Judge.

26. The material on comparative sentencing submitted by the applicant was of no value in assessing whether Mrs Turini failed the character test.

27. I have concluded that the seriousness of the offence to which Mrs Turini admits has been adequately established. In my view, there is no recent good conduct shown on the evidence to indicate that her character may have reformed. Hers was not an isolated incident. It was a course of conduct entered into and carried out over a period of two and a half years, all for an improper purpose and all to obtain an advantage under Australian law to which Mrs Turini was not entitled. Certain references were tendered in evidence. In my view, they did not take the question of recent good conduct any further. They were almost all in general terms. Typical of those were the statements made by Ms Decosto, the manager of a cooperative for which Mrs Turini had previously worked. Ms Decosto said:

"She is always willing to lend a helping hand especially to less fortunate people. She is very active when it comes to social and community projects. She is a true friend through thick and thin. She is always there to give moral support whenever I encounter some problems."

"Mrs Turini is very thoughtful. She doesn't forget important dates such as birthdays and anniversaries. She always makes it a point to have a little something for you in any occasion. There was a time in my life when I needed financial help. It was Mrs Turini who came to my rescue without asking for anything in return. To me she is a true friend. She always gives me significant advice especially regarding my marital problems. I could confide in her knowing that she understands me most.

29. There is no evidence of probative value as to recent good conduct that could indicate a countervailing factor for the purpose of the Ministerial Direction. I must then consider whether the discretion should be exercised in the applicant's favour. There are three primary considerations, namely the protection of the Australian community and members of the community, the expectations of the Australian community and the best interests of any relevant child. There is no child whose interests have to be considered.

30. So far as the protection of the Australian community is concerned, it is fundamental to the administration of an immigration system that there be no blatant and flagrant breach of its procedures for an improper purpose. The applicant's solicitor cited the factual details in a large number of cases and attempted to distinguish the facts in this case from those other facts. Each case, of course, will turn on its own facts. Here, there is a deliberate attempt to misuse the system through repeated acts of deceit. In my view, it is essential for the protection of the Australian community that such acts be visited with appropriate consequences.

31. As to the expectations of the Australian community, the Direction specifically identifies in paragraph 2.6(c) that the presenting of false documents or making false or misleading statements in connection with an entry or stay in Australia are to be regarded as very serious. It is an expectation of the Australian community that persons who have engaged in such conduct should not profit from their wrongdoing. The applicant's solicitor submitted that the granting of a visa should not be regarded as a reward for past conduct. In my view, this is an unrealistic approach. So far as the Australian community is concerned, it would have an expectation that a person who has deliberately violated the immigration system should not receive a visa at a later date, whether or not this is to be viewed as a reward.

32. There are subsidiary additional considerations to be taken into account. I accept (as the respondent does) that emotional hardship will be suffered by the applicant. He has been to visit his wife twice since she returned to the Philippines in October 1998 but has not been able to afford to go there more often. He speaks with her on the telephone every week. He has been a jeweller for 22 years. He is a man of mature years.

33. Notwithstanding this, he was under the impression that after Mrs Turini returned to the Philippines she would have no difficulty in re-entering Australia. It is hard to see how he could honestly hold such a belief, having had independent legal advice from an experienced immigration solicitor. This advice was given before he married Mrs Turini. In my view, the emotional hardship which he undoubtedly will suffer must be discounted heavily by the fact of his pre-knowledge of the likely consequences. Whatever he thought concerning the fate of Filipino citizens in similar circumstances (including the circumstances of a friend of his), the fact is that he received professional advice from an expert and has simply ignored it or refused to acknowledge its accuracy.

34. Mrs Turini similarly will be emotionally affected. Having regard to the fact that her deliberate actions were the cause of her present predicament, her hardship may also be discounted.

35. I am to have regard to hardship which might be caused to "immediate family members". The applicant lives with his mother and father, both of whom are elderly and both of whom are upset at the difficulties in which their son finds himself. The nature of the hardship which they will suffer, however, is not approaching a sufficient degree to amount to a countervailing consideration. Evidence was given by Ms Withers, a psychologist, concerning the psychological effect of a refusal on the applicant. She was not required for cross examination and I accept the material in her report. Nevertheless, the emotional and possible financial hardship which the applicant will continue to suffer as a result of continued separation of his wife are, to some extent, self-inflicted and in any event are of not such a countervailing consideration that they would outweigh the primary factors to which I must have regard.

36. For the above reasons, the decision under review is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

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