Serrano and Minister for Immigration and Multicultural Affairs [2000] AATA 947 (31 October 2000)

Last Updated: 10 November 2000

DECISION AND REASONS FOR DECISION [2000] AATA 947

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/246

GENERAL ADMINISTRATIVE DIVISION )

Re RENATO SERRANO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date 31 October 2000

Place Sydney

Decision The decision under review is affirmed.

..............................................

BJ McMahon

Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP - spouse visa - refusal on character grounds - failure to meet the character test - false protection visa application - disregard for Australia's immigration laws - primary considerations outweigh secondary consideration of hardship - no exercise of residual discretion.

Migration Act 1958 - ss 417, 499, 501

REASONS FOR DECISION

31 October 2000 Mr B.J. McMahon (Deputy President)

1. This is an application to review a decision to refuse an application for a spouse visa made by Marilyn Serrano (Marilyn), the wife of the above-named applicant (Renato).

2. Marilyn was born on 13 October 1973 in the Philippines and remains a citizen of that country. She first came to Australia on 28 January 1997 on a visitor's visa to see relatives.

3. Shortly after she arrived, she decided, after talking with fellow nationals, that she wished to stay and work in this country. With their help, she was put in touch with a migration agent named Abel Miranda. I say put in touch because her evidence was that she, in fact, never met Mr Miranda. All her dealings were with his secretary.

4. The advice she received was that she should apply for a protection visa. While that application was being dealt with, she would be entitled to a bridging visa and thus would be entitled to work. Following that advice, she went to Mr Miranda's office to pay him $1,500 and to give instructions to apply for a protection visa. Her evidence was that she merely gave her personal details to the secretary and made an appointment to return to sign the completed form.

5. Marilyn is a university graduate with a degree of Bachelor of Science in Nutrition and Dietetics. She speaks, writes and reads English fluently. When she returned to sign the application, she agrees that she read it in the presence of the secretary and signed it on 10 March 1997. Included in the application were reasons given for leaving the Philippines. These reasons were referred to in answer to several questions as follows:

"On 8 March 1996, International Women's Day, I was initiated into GABRIELA (a militant women's group) and became an official member. It was not common for a gov't employee to become involved in women's struggle, rights, feminism and all that. Not to mention be involved with an organization. I've attended activities such as conferences, meetings, rallies and others. In October-November 1996, GABRIELA was involved in anti-APEC demos and particularly in propaganda activities such as lightnings, rallies, distribution of flyers, leaflets and posters. It was in this instance that some of our members were arrested. But I was intimidated and harassed by my co-employees in the government and the authorities in the Manila City Hall . and at the time of the APEC summit I was given so much aggravation by City Hall officials because they believe that GABRIELA is only a front for left wing subversives and that it is not my business, as a gov't employee, to be involved. They gave me warnings that I will lose my career with the gov't that they will have me investigated by the PNP (Phil Nat'l Police) and even gave me threats of persecution. The situation became intolerable for me and I immediately arranged to travel abroad.

If I go back to my country, I fear that the authorities will enforce their warnings and threats, I believe I will be mistreated as they always do when it comes to dealing with left wing activities.

...

I know I will be mistreated if I go back because of the way they treated me back in November 1996 when they gave me aggravation because of my involvement with GABRIELA. They treated it as criminal, the way I felt it. And the situation worsened and was intolerable when they threatened me with persecution.

6. Marilyn now agrees that there was not a word of truth in any of the above-stated reasons. She insists that she did not instruct the secretary or Mr Miranda to give these reasons, although she agreed that she read the form after it was completed and agreed to sign it. She also paid an additional fee to the Department in connection with the lodging of the application. The form makes reference throughout to claims to be a refugee. There can be no misunderstanding of the purpose of the form. Marilyn had no claim to be a refugee and now freely acknowledges this fact.

7. Immediately the form was lodged she obtained her bridging visa and obtained employment in Australia as a process worker with a medical supply company. She continued in this employment until she finally left in March 1999.

8. The application for a protection visa was refused. Marilyn wished to be able to continue to work and again consulted Mr Miranda's office to find out the best way to proceed.

9. For another fee, that office prepared an appeal to the Refugee Review Tribunal, which the applicant signed. The story in this application was further elaborated. It contained this statement:

"As a matter of fact, I just received a letter from relatives that my enemies are still after me. I will attend my hearing and support it with fresh evidence."

10. She did not attend the hearing, and did not supply any further evidence. She agreed in evidence before me that this statement was also a lie.

11. Her appeal to the Refugee Review Tribunal was unsuccessful and she was informed of this fact on 21 January 1998.

12. By then, she was unable to contact Mr Miranda again and was advised by her friends to consult a new solicitor, Mr Diaz.

13. Her evidence was that she attended at Mr Diaz's office in February 1998 when she further instructed him to prepare an application to the Minister under section 417 of the Migration Act. Although she said that she merely instructed Mr Diaz to repeat her previous application, in fact she added further elaborations which were reflected in his letter to the Minister.

14. This additional material was as follows:

"The applicant instructs us that she is a member of GABRIELA, this is a militant women's group. She states that she was involved in demonstrations against the APEC summit that was held in Manila in October and November 1997. When her employers at the City Hall, Manila, found out that she was involved they began to intimidate and harass her because of her involvement in the demonstrations and GABRIELA's activities.

The applicant claims that they threatened her and that the threats included investigation by the PNP (Philippine National Police). Because of the extreme threats she received she left the Philippines at her earliest opportunity.

The applicant does not feel that she can turn to the authorities for protection because they are the one's that are threatening to persecute her. The reason she is in this position is because of the political beliefs that she has which differ to those held by her employers."

15. Either Mr Diaz misunderstood his instructions, or Marilyn embarked on yet another pointless deception. She could not have been involved in demonstrations in Manila in October and November 1997 as she was in Australia at that time. She agreed with this in evidence.

16. The application to the Minister was unsuccessful. On 21 June 1998, he decided not to consider exercising his statutory powers. Marilyn was then requested to contact the nearest regional office of the Department to discuss her status in Australia. From that time, she had no legal basis to support her continued presence in this country. Working without a permit was also contrary to the requirements of the statute. Nonetheless, she continued to remain in Australia for a further nine months and continued to work during that time.

17. She had had a casual acquaintance with Renato since about February 1998. At that time, she had been unsuccessful in her application for a visa, and had been unsuccessful in her appeal to the Refugee Review Tribunal. She did not tell Renato of her immigration status initially.

18. By about July or August 1998, when her application to the Minister had been finally rejected, she told him. They consulted Mr Diaz and were advised of Marilyn's situation. At that stage, both Marilyn and Renato knew very well that Marilyn had no right to remain in this country or work here. Having received advice from an experienced immigration lawyer, I must assume that they also knew that if she left this country, obtaining permission to re-enter it would be fraught with difficulty.

19. Nevertheless, they decided to marry. The ceremony took place on 5 September 1998. It was to be a further six months before they followed Mr Diaz's advice by returning to Manila, where Marilyn was to make the application for a spouse visa which, is the subject of the present review.

20. According to Renato, who gave evidence in this application, he continually asked Marilyn to leave early. However, she said that she wished to stay so that she could continue to work and support her family. It is not clear what finally precipitated their departure on 21 March 1999.

21. During interviews at the Australian Embassy in Manila in connection with the spouse visa application, Marilyn readily agreed to the falsity of her previous applications. She also agreed that they were knowingly false, as she had read and completed them. Her explanation, repeated in her written statement before this Tribunal, was:

"Although I perused the contents of the application before I signed the same, my mind was not focussed on the truth or falsity of reasons as I was not aware nor have I been given a full explanation of the nature of an application for a protection visa".

22. I do not accept this explanation. The nature of the application is apparent on its face. The applicant is an educated woman. She read and understood what she signed, not once, but three times. Her mind was focussed on being able to stay and work legally in Australia. To achieve that goal, she was prepared to say anything, or allow anything to be said in her name. She said that she signed the application to the Refugee Review Tribunal in blank. Without seeing this document, I find this hard to accept. If it is true, however, it shows a reckless indifference to the truth, and a willingness to allow any lies to be conveyed to the authorities in her name.

23. Some endeavour was made to lay the blame at the foot of Mr Miranda. He is accountable elsewhere. In these proceedings, Marilyn is not entitled to shelter behind any alleged wrongdoing on the part of her paid agent. She was a collaborator, not only with Mr Miranda. She gave false instructions to Mr Diaz. She had many opportunities to retract her story and declined to do so. She was determined to be able to work and was indifferent to the way in which she achieved apparent legality.

24. Her application for a spouse visa was rejected under section 501 of the Migration Act 1958 on the ground that, having regard to her past and present general conduct, she was not of good character.

25. A Ministerial Direction has been given under section 499 setting out the matters to be considered in determining whether or not a person is not of good character. In considering the operation of subparagraph 501(6)(c)(ii), I am to consider whether Marilyn has, in connection with any application for the grant of a visa of any kind or any kind of government benefit, provided a bogus document or made a false or misleading statement. I am also to consider whether Marilyn, as a non-citizen, has ever made a false or misleading declaration on an approved form. The documents to which I have referred clearly contain false or misleading statements. The original visa application contained a clearly false declaration. In the absence of any countervailing factors, the Ministerial Direction provides that this constitutes a failure to pass the character test. In my view, there are no such countervailing factors. The only issue to be decided is whether the residual discretion should be exercised in her favour.

26. In considering the exercise of the discretion, I am to take account of three primary considerations, namely the protection of the Australian community, the expectations of the Australian community and the best interest of any relevant child. There is no child whose interests are to be considered in this application.

27. When considering the protection of the Australian community, I am to have regard to the seriousness and nature of the conduct. Amongst examples of offences which are considered by the Government to be very serious are crimes against the Migration Act, which include presenting false documents or making a false or misleading statement in connection with a stay in Australia. Clearly, what Marilyn has done must be regarded as seriously wrong. To protect the Australian community it is essential that the integrity of the migration system be preserved against attempts to subvert it through statements known originally only to the applicant to be false. For the protection of the Australian community, the residual discretion should not be exercised in the visa applicant's favour.

28. The expectations of the Australian community would be that non-citizens obey Australian laws while in Australia. Not only did Marilyn make false statements deliberately and repeatedly in official documents, she also continued to stay and work illegally in Australia for nine months, contrary even to the advice of her husband. The Australian community expects that persons in her situation should not be rewarded as a consequence of their wrongdoing.

29. No evidence of recent good conduct is available. The fact that Marilyn returned to Manila in order to make her spouse visa application does not reflect any particular credit upon her, as was claimed. She had no alternative. There was some evidence of her general character from Ms Cunanan, a close family friend. Having regard to the weight to which I should accord contrary considerations, the weight to be given to Ms Cunanan's evidence is slight.

30. Among the other considerations to be taken into account are the degree of hardship which would be caused to immediate family members, lawfully resident in Australia. The only family member about whom there is any evidence is Renato. Whilst I accept that their marriage was genuine, I am bound, in assessing his compassionate claims, to consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship. Renato was fully aware of Marilyn's immigration difficulties at the time they became engaged. They had had legal advice from an experienced immigration lawyer. They proceeded to marry notwithstanding the difficulties which must have been explained to them at the time if they continued to live in Australia or wished to achieve that aim in due course. In considering the hardship to Renato, this knowledge must weigh heavily against him.

31. Marilyn is not in employment. Renato sends her money regularly but, because of the legal costs involved, will soon have to discontinue these payments. He emphasised that he is now aged 39 and wishes to start a family. Whilst I recognise these matters are of real concern, financially and emotionally, the hardship to be suffered by Renato is considerably outweighed by the primary considerations to which I must have regard.

32. There is no other evidence of any other hardship or of any other matters to be taken into account under the heading of 'Other Considerations'.

33. I see no reason why the decision under review should not be affirmed and it is so affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

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

Dominika Rajewski, Associate

Date/s of Hearing 23 October 2000

Date of Decision 31 October

Counsel for the Applicant Mr T. Kolomyjec

Solicitor for the Applicant Diaz & Diaz Lawyers

Solicitor for the Respondent Ms Susan Fraser

(Australian Government Solicitor)