Gaculais and Minister for Immigration and Multicultural Affairs [2000] AATA 959 (25 August 2000)

Last Updated: 10 November 2000

DECISION AND REASONS FOR DECISION [2000] AATA 959

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/375

GENERAL ADMINISTRATIVE DIVISION )

Re LILIA GACULAIS

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date 25 August 2000

Place Sydney

Decision The decision under review is affirmed.

(Sgd Dr D Chappell)

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

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - subclass 105 (skilled-Australian-linked) 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 - allegation of malpractice on the part of the migration agent - consideration of other general conduct - not a person of good character - consideration of exercise of the Tribunal's discretion - consideration of the need to protect the Australian community - need to send a strong deterrent message - consideration of the legitimate expectation of the Australian community - behaviour not rewarded - decision affirmed

Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238

Manlangit v Minister for Immigration and Multicultural Affairs [2000] AATA 400

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

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277

May v Minister for Immigration and Multicultural Affairs [2000] AATA 480

Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575

Esguerra v Minister for Immigration and Multicultural Affairs [2000] AATA 554

REASONS FOR DECISION

25 August 2000 Dr D. Chappell, Deputy President

BACKGROUND

Application and Hearing

1. This is an application by Ms Lilia Gaculais (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 her nephew, Mr Jonathan Blas (the visa applicant) a subclass 105 (skilled-Australian-linked) visa. The refusal was based on a finding that Mr Blas was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision. An application for such a review was lodged with the Tribunal on 9 March 2000 (T1).

2. Mr Bert Ocon, a migration agent, represented Ms Gaculais at the hearing. Ms Gaculais gave personal testimony to the Tribunal.

3. Ms Susan Fraser, of the Australian Government Solicitor's Office, represented the respondent. No witnesses testified 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:

Exhibit No. Description Date

A1 Letter from Michael Jones Undated

A2 Statutory Declaration Nicanor Rodriguez 10/8/2000

A3 Statutory Declaration E.M. Pascual 10/8/2000

A4 Testimonial reference Emma R. Montoya 21/7/2000

A5 Certification of good moral character from Milagros Aviles 3/8/2000

A6 Letter from Antonio Villar 2/8/2000

LEGISLATIVE AND POLICY PROVISONS

5. In order to be granted a subclass 105 (skilled-Australian-linked) 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.

6. Section 501 of the Act provides:

(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

the person is not of good character;

7. Thus the issue which the Tribunal must determine is whether Mr Blas does not satisfy the character test for the purpose of s501(6)(c) of the Act. If the Tribunal is satisfied that Mr Blas 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 Mr Blas.

8. 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.

(T6: 76)

9. 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 Mr Blas and the application of the character test under s501.

EVIDENCE

Past and Present General Conduct

10. It was the general contention of the respondent that Mr Blas does not pass the character test pursuant to s501(6)(c)(ii) of the Act on the basis of his 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 evasion or non-payment of debt;

* 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.

(T: 79)

11. The Policy Direction also indicates that:

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).

(T: 80-81)

12. 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), (b) and (c) of the Policy Direction which were most relevant to Mr Blas. 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 Mr Blas did meet the character test.

13. In reviewing the evidence relating to Mr Blas' past and present general conduct it is most convenient to consider both his background and behaviour under the following chronological headings:

* Pre-arrival in Australia

* Entry to Australia and Lodging of Protection Visa: August 1996

* Refusal of Protection Visa Application and Application to Refugee Review Tribunal (RRT): January - July 1997

* Section 417 Application: September 1997 - April 1998

* Departure from Australia: April - May 1998

* Visa Application and Interviews: July 1998 - January 2000

14. It should be noted that Mr Blas did not give personal testimony to the Tribunal. Accordingly, the only evidence relating to his past and present general conduct to which the Tribunal has been able to have regard is that contained in the T and S documents; the exhibits which have been referred to; and the personal testimony which was provided by Ms Gaculais as the review applicant.

Pre-arrival in Australia

15. Mr Blas was born in San Miguel in the Province of Bulacan in the Philippines on 23 Janaury 1971 (T: 105). He received his primary and secondary education in San Miguel and then pursued tertiary studies at the Dr Carlos S. Lanting College in Quezon City in the Philippines. He obtained his Bachelor of Science in Nursing at that college in 1992 (T: 109). He was subsequently employed as a nurse at St Martin De Porres Charity Hospital between 1993 and 1995 and then as a nurse paramedic at the Lifeline Arrows Medical Specialists Inc. facility in Manila from 1995 until the time that he came to this country (T: 109).

Entry to Australia and Lodging of Protection Visa: August 1996

16. On 2 August 1996 Mr Blas arrived in Australia on a visitor's visa which was valid for a period of three months. According to the review applicant, the purpose of this visit by her nephew was to participate in a large family reunion. Mr Blas was not the only person who attended this reunion from the Philippines. Ms Gaculais said that to ensure that the reunion went well and that the visitors were able to see Australia she took a period of vacation in order to assist them with their touring.

17. Ms Gaculais also told the Tribunal that after about two weeks Mr Blas had become bored and said that he wanted to work. Ms Gaculais said that it had never been her nephew's purpose to come to Australia to find work and that he had been unfamiliar with the situation here until his arrival. Ms Gaculais also said that after her nephew had made this decision it was recommended by an unnamed acquaintance that he should go and see a migration agent or solicitor named Mr Teddy Gonzales who would be able to assist him. She said that a number of other people had already been clients of Mr Gonzales.

18. Ms Gaculais said that she could not remember when it was that her nephew had told her that he had actually gone to see Mr Gonzales. She agreed that the protection visa application which was subsequently made by Mr Blas had been lodged on 21 August 1996 which was less than three weeks after his arrival in this country. She also said that she knew that Mr Gonzales' office was in Blacktown and that she was still touring with her other relatives when Mr Blas had gone to see Mr Gonzales. She said that Mr Gonzales had been paid a fee of $1,500 by her nephew to assist with the preparation of the protection visa application and a further sum of $1,500 upon a subsequent review of that application by the RRT. She did not know whether her nephew had any receipt for these sums - he probably had but she did not know.

19. Ms Gaculais also explained what her nephew had told her about his conversations with Mr Gonzales at the time of his completion of the protection visa application. She said Mr Blas had told Mr Gonzales that he wanted to get permission to work in Australia legally. Mr Gonzales had said that he could get him a work permit without any trouble and in a way which would be allowed by the Australian Government. Mr Gonzales asked Mr Blas to sign the protection visa application form and he had also dictated to Mr Blas the particular claims that were made about the reasons why Mr Blas sought protection as a refugee.

20. The protection visa application form which was completed by Mr Blas contained the following response to a question which asked "why did you leave that country (Philippines)?":

1. I was a professional nurse by occupation while in the Philippines.

2. While I had a full time job, I had spare time after work and I wanted to have an additional part-time work.

3. It was the time I met Ben Claraval a friend I had met a few years back. Ben said they were in need of a nurse to participate in their rural projects. Ben said they had a privately funded corporation that looked after the needy communities. Ben was willing to get me part time so I accepted the job.

4. Early in our visits to the town I was shocked to see how difficult life was in many of those areas. There were really small villages with just very few people in them. There was neither water nor electricity in these places.

5. As time went by, Ben and I became (better) even closer. We had several discussions about our work but it always puzzled me why he would request that I keep everything we did in confidence. I thought that we were doing something great which deserves to be talked about and probably duplicated by others. But it was his request and I respected this.

6. At one time though I was approached by Catherine Gomez. She was part of Ben's team. She said that we would not see Ben anymore and that the project was to stop. I insisted to get from her information as to Ben because I felt that something was wrong. I would not let her go. After a while she said that she would disclose to me the situation because she did not want to endanger me. She said that the vilages [sic] we visited were where families of new peoples army members and that Ben was a communist leader. She said Ben had been shot and killed.

7. This disclosure left me in shock. I was in the midst of communists and I did not know about it. Even more shocking was the news about Ben's death.

8. Two nights later Catherine came to see me. She was visibly upset. She said the communists had come to the conclusion that I had something to do with Ben's death. She said that an order had been sent to a liquidation team to have me killed. She said she did not believe I was involve [sic] and therefore wanted to forewarn me.

9. It is for this reason that I had to leave the Philippines.

(T: 110-111)

21. This application form also contained a signature which Ms Gaculais confirmed was her nephew's, relating to the following declaration:

I declare that:

* The information I have supplied on or with this form is complete, correct and up-to-date in every detail.

* I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

* I understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia by way of this application.

* In accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Ethnic Affairs of any changes to my personal circumstances (e.g. marital status, changes to the family composition) while my application is being considered.

* I undertake to inform the Department of Immigration and Ethnic Affairs if I change my address for more than 14 days while my application is being considered.

* I authorise the Australian Government to make any enquiries necessary to determine my eligibility for permanent stay in Australia, and to use any information supplied in this application for that purpose.

* I have read and understood the information supplied to me in this application.

WARNING: The provision of false or misleading information in this Declaration is subject to penalties under the Migration Act 1958.

(T: 116)

22. It should be noted that this signature was dated 12 August 1996 although the application was not filed until 21 August 1996. Ms Gaculais said that Mr Blas had been aware that the information that had been contained in this protection visa application was "not factual". However, her nephew had been assured by Mr Gonzales that this was only "a minor offence". The solicitor had told Mr Blas that it was quite acceptable and her nephew was not aware that he was violating any law.

23. Ms Gaculais said that as a result of the filing of the protection visa application her nephew had been given permission to work. He had looked for a job and had easily found one as a casual process worker. Later, he had decided to upgrade his nursing career and he then undertook nursing studies. He had successfully completed these studies and then applied for and obtained work at Concord Hospital as a nurse.

24. It should be noted that in the subsequent application made by Mr Blas to migrate to Australia the only details of his employment history recorded are those relating to the period that he spent at Concord Repatriation General Hospital from August 1997 to May 1998 (T: 163). That application also shows that he attended the New South Wales College of Nursing in Sydney and completed the overseas qualified nursing program between April and June 1997 (T: 166).

Refusal of Protection Visa Application and Application to Refugee Review Tribunal (RRT): January - July 1997

25. On 18 January 1997 Mr Blas' application for a protection visa was refused by a delegate of the Minister (T:9). Ms Gaculais said that her nephew had told her of this refusal and that he had then gone back to see Mr Gonzales. Mr Gonzales had told him not to worry about the situation and that everything was under control. He could apply for an appeal of this decision and still stay in this country and work legally. Mr Gonzales then dictated to her nephew what he should put on his application for review and asked him to sign this document. On 17 February 1997 this application was lodged with the RRT (see S1). The reasons given in this application for the review by the RRT were as follows:

The decision made in my case focused on wether [sic] or not the fear of convention based persecution is well founded. This is stated in page 3 of the decision made by a delegate for the Minister. In answering this question the delegate relied upon some information. First of all the factional split within the CPP and NPA did occur. But this was in the past. The CPP and NPA have since resolved their internal differences and the party is not firmly under the control of its chairman Mr. Jose Maria Sison. The matter of President Ramoses [sic] program of economic reform is admitted. However, I bring to the Tribunal's attention, a matter of which is of public knowledge in the Philippines. This is the fact that 70% of the nation's wealth is controlled by less than 8% of the population. This means that while there has been economic growth in terms of GNP and other relevant economic indicators, only a tiny section of the population has benefited. 70% of the population to this very day, live below poverty level. This can be confirmed from the United Nation's sources. The claim about a dismantling of the political-military structure of the NPA is largely a consequence of the government's chest beating exercise. A present government like previous governments officially announced not only the declined [sic] of the communism but in certain instances its demise. This has many purposes. First, it projects to the international community and local community that the government is effective against the insurgents. Secondly it is effective to demmoralize [sic] communists or prospective communists. However, governmental pronouncement do not necessarily coincide with factual reality. If the delegat's [sic] information has been sourced from government pronouncement ...

(S: 44)

26. On 21 July 1997 the RRT affirmed the delegate's decision not to grant a protection visa to Mr Blas (T11; S1). The RRT noted that Mr Blas had declined to appear in person at the hearing to give testimony. The RRT concluded that on all the evidence that had been submitted by Mr Blas his alleged fear of persecution in the Philippines was unfounded.

Section 417 Application: September 1997 - April 1998

27. Ms Gaculais said that her nephew had informed her of the refusal of his application by the RRT. She said that he had then tried to get in touch with Mr Gonzales but that he was always unavailable. She had also heard a rumour that Mr Gonzales was in trouble with the Immigration Department. She was not sure what that trouble was but friends had then advised her nephew to go to see another solicitor to seek help. This solicitor or migration agent who was recommended was a Mr Abel Miranda. Mr Miranda had encouraged her nephew to apply for Ministerial intervention if he wished to continue working legally. Mr Miranda had then written to the Minister on her nephew's behalf.

28. The letter which was written to the Minister was dated 11 September 1997 and was sent under the signature of Jonathan Blas. The letter stated:

My full name is Jonathan Blas and I was born in Philippines. I arrived in Australia in August 1996. I disagree with the decision by the RRT that I am not a refugee and for that reason I request for your intervention.

In brief, I escaped from the Philippines to avoid being executed by the NPA members. I worked as a nurse on rural projects, helping the needy people. This work was for a privately funded corporation on a part time basis. I recall that I was shocked by the poor conditions in which people lived. My firend [sic] requested that I keep the work project confidential. I was suprised [sic] but respected the request.

I recall that a woman, who worked on my friends [sic] team approached me and told me that my friend was a communist leader and that he had been shot and killed. She went on to say that the villages where the project had operated were inhabited by the families of NPA members. I wa [sic] shocked because I did not know that my firend [sic] was a communist. A couple of nights later the same woman came to see me to tell me that the communists suspect that I had some involvement with my friends [sic] death. According to her the NPA sent an order to the "Liquidation Team" to have me killed. Although this woman was a communist, she told me that she does not believe that I was involved in the killing of my friend and therefore she decided to give me an advance warning. Immediately afterwards I left the area and returned to Manila. I was scared that the NPA members would locate me and execute me. On advise [sic] from friends I decided to escape from the Philippines because it would be only a matter of time before I was located.

The authorities are not capable of giving me full protection and therefore it would not be safe for me to remain in the Philippines.

In view of this fear I request your intervention in this matter. Should you require any further information do not hesitate to contact me.

(T13)

29. During the course of her cross-examination by Ms Fraser, Ms Gaculais said that her nephew had gone to Mr Miranda because he trusted him as a solicitor. There had been no intention on her nephew's part to do anything which was illegal. Her nephew had only wanted to stay and work legally in this country. He had asked him for advice as to what he should do and he had been encouraged or advised to apply to the Minister for his intervention if he wished to continue to work. She agreed that the signature on the letter was her nephew's but said that the actual content of the letter had been prepared in her nephew's presence and he had been asked to sign the letter.

30. Queried about the fact that the claims that had been made in this letter were identical to those which had been made in the protection visa, Ms Gaculais said that her nephew had gone to Mr Miranda with all of his documents. He had given a copy to him of his prior applications and he had trusted him to do the right thing. He had been misled by Mr Miranda and had been convinced that everything that he was doing was alright. She had subsequently told friends never to go to these people again because they could place you at a disadvantage if you wanted subsequently to migrate to Australia.

Departure from Australia: April - May 1998

31. On 2 April 1998 the Minister decided not to exercise his discretion under s417 of the Act in favour of Mr Blas. On 6 April 1998 Mr Blas lodged an application for a bridging visa E sublcass 050. This application was granted on the basis that he depart from Australia (T17). On 9 May 1998 Mr Blas did leave this country and returned to the Philippines.

Visa Application and Interviews: July 1998 - January 2000

32. On 15 July 1998 Mr Blas lodged an application for a subclass 105 (skilled-Australian-linked) visa with his aunt, an Australian citizen from November 1985 as his sponsor (T16). The application also included Mr Blas' spouse, Ms Aileen Estacio and his daughter, Daphine Sydney Blas, born on 26 March 1998. Mr Blas married his wife in Australia on 12 December 1997 (T: 182). The application showed that she too had been a graduate of the New South Wales College of Nursing, attending a course from July - September 1997 (T:166). She too had worked at the Concord Repatriation General Hospital from November 1997 until May 1998 (T: 167).

33. On 7 September 1999 Mr Blas and his wife were interviewed by officials of the respondent at the Australian Embassy in Manila. A record of this interview included the following information:

9. PA and spouse to attend the interview. They are both went [sic] to AA and applied for protection visa. Just like the story given by brother (REYNALDO BLAS) the [sic] went to Teddy Gonzales paid a sum of money to help them stay in AA permanently to work and study. They claim that they were asked to fill out an application form and sign a document wherein the contents indicated that their life is under threat for messing up with the "NPA". They said that they don't really mind what kind of story the agent made since they [sic] intention is to stay and study. After a week they received a bridging visa and they were informed that they will receive a ltr from the DIMA regarding the decision. It took 8 months before they received a refusal ltr then they went to Mr Gonzalez again to fix it. They were informed that they are going to apply for an appeal for them to stay longer in AA. The application was refused again after 6 months and since her [sic] wife is pregnant and not allowed to travel he went to another agent a certain Abel Miranda. He said he 500 AUD to get him another visa this time for ministerial representation to stay until the delivery. PA and spouse claims that they knew the [illegible] their life is not under threat but they don't know anything about onshore application and they just wanted to stay to study.

(T: 245)

34. On 19 January 2000 the Minister's delegate Ms Rachel Gibbs, made a decision to refuse to grant Mr Blas a visa (T1: 12-18).

APPLICATION OF THE CHARACTER TEST

Submissions, Policy and Case Law

35. 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); and Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 127 7 (hereinafter Goldie)).

36. As the Full Federal Court stated in Goldie:

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.

(per Spender, Drummond and Mansfield JJ: paragraph 8)

In Goldie the Full Federal Court also noted with approval the following oft quoted statement from 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.

(at 195)

37. On the basis of the evidence which has been reviewed Mr Ocon contended that the Tribunal should find that Mr Blas passed the character test. He had only wished to work in this country on a lawful basis following his arrival as a visitor. He had sought the assistance of a solicitor or migration agent. That agent, Mr Gonzales, had encouraged him to apply for a protection visa and had said that there will be no serious consequences. He had been guided by what Mr Gonzales had said, and also by Mr Miranda. Mr Blas admitted that the information that had been supplied in the protection visa application was not factual. Nonetheless Mr Blas had not submitted a false application.

38. Mr Ocon also referred to the Policy Direction which indicated that recent good conduct should be taken into account when assessing a person's character. On this basis Mr Ocon submitted that Mr Blas had displayed several acts of good conduct. When realising what he had done was unlawful he had departed immediately from Australia. Mr Blas had also disclosed the nature of his conduct to the respondent's officials in the Philippines and had made a proper application for migration to this country. These were factors that should be taken into account by the Tribunal.

39. In her submissions made on behalf of the respondent Ms Fraser said that the evidence showed very clearly that Mr Blas did not pass the character test as the result of the false and misleading statements that he had made in his protection visa application, his RRT application, and also in the request that had been made to the Minister. The nature of the story and the claims made in each of these applications were identical. The applicant was a well educated person who spoke and wrote English fluently. He knew that the statements that he was making were incorrect even though he claimed to have relied upon the assistance of migration agents or solicitors. Mr Blas had opportunities to recant his story on a number of occasions and he had not exercised this. This should be seen to be indicative of his failure to pass the character test: see Manlangit and Minister for Immigration and Multicultural Affairs [2000] AATA 400 (paragraph 17).

40. Ms Fraser also submitted that little weight should be given by the Tribunal to a number of character statements that had been made by witnesses in support of the visa applicant. None of these witnesses had been made available for cross-examination and there was also no evidence that any of them had been made aware of the nature of Mr Blas' immigration misconduct.

The Tribunal's Views

41. It was not a matter of dispute between the parties that under the revised provisions of s501 the onus of establishing that a person meets the character test is placed upon the visa applicant rather than upon the Minister. On the basis of all of the evidence that has been presented the Tribunal is of the view that Mr Blas has failed to meet this onus. Indeed, there is overwhelming evidence that his enduring moral qualities are those of a person of bad rather than good character. That evidence displays a number of instances of general conduct which lay his "character bare very tellingly", in the words used in Baker. In the Tribunal's opinion this conduct commenced prior to Mr Blas' arrival in this country in August 1996. The Tribunal does not believe that it was ever his intention to come to Australia solely for the purpose of a family reunion. Rather, the Tribunal believes that he had formed the intention prior to his arrival that he would not only obtain work in this country but also seek further qualifications in his chosen profession of nursing.

42. The Tribunal did not, of course, have the benefit of hearing Mr Blas' own explanations of his conduct but had, instead, to rely upon the secondary testimony provided by his aunt, Ms Gaculais. The Tribunal did not find Ms Gaculais to be a credible witness in her own right or on behalf of Mr Blas. It was she who claimed that Mr Blas had joined other family members in this reunion but that he had "become bored" with the tour and then wanted to obtain work. Only then it was said, did Mr Gonzales become involved in providing advice to Mr Blas as to how he could stay and work legally in this country.

43. This claimed boredom on Mr Blas' part appears to have been generated very rapidly since his signature appears on the protection visa application dated 12 August 1996 - just eight days after he had arrived in the country. Ms Gaculais claimed that the family tour had been one which had continued for several weeks. She also said that she did not know who had referred her nephew to Mr Gonzales although she did suggest that there were other members of the Filipino community who had used his services. Again, the Tribunal is far from convinced that she too was not unaware of the type of services that could be provided by Mr Gonzales and may well have been involved in referring him to her nephew.

44. Whatever the circumstances surrounding Mr Blas' introduction to Mr Gonzales may have been, there is no doubt that Mr Blas did proceed with the lodgment of a protection visa application that Ms Gaculais described as not being "factually correct", but which in fact was based on totally fraudulent claims. According to the secondary account provided by Ms Gaculais of her nephew's conversations with Mr Gonzales the claims contained in the protection visa application were dictated to Mr Blas after Mr Gonzales had been briefed by him about his general background. This background was than blended into the story that was fabricated about Mr Blas' alleged encounters with communist guerillas in the Philippines. A reading of the claims, which have been set out above show them to be quite complex and to display a knowledge of the general criteria required to establish refugee status.

45. The claims may very well have been made up by Mr Gonzales but Mr Blas was obviously a willing participant in this fraudulent behaviour. The evidence shows that Mr Blas has tertiary qualifications and has occupied quite responsible positions within the health care industry both in the Philippines and in Australia. It could not in any sense be said that he was or is a naïve or innocent victim of an unscrupulous professional adviser. Mr Blas was clearly willing to do anything that he could to achieve his objective of both working and studying in this country. That objective was met through the lodging of the protection visa application and with the subsequent appeal to the RRT and then the request for Ministerial intervention.

46. At no stage during these series of transactions did Mr Blas make any attempt to inform Australian immigration officials of his true status, nor make any complaints to them about the nature of the advice that he had received both from Mr Gonzales and, subsequently, from Mr Miranda. The nature of the claims that were contained in the various documents presented to support his various applications were all but identical. They remained claims which he well knew were without any foundation.

47. Mr Ocon contended that despite this pattern of behaviour in the past the Tribunal should reach a conclusion that Mr Blas was now a person of good character, based on the fact that once Mr Blas knew that what he had done was wrong he left the country. He had then done further good deeds by confessing to his wrongdoing at the time that he was interviewed by immigration officials at the Australian Embassy in Manila as part of the procedures for gaining the visa that he now seeks.

48. The Tribunal rejects these contentions. The reality was that Mr Blas, having run the full gamut of the protection visa and Ministerial intervention process, had no further "lawful options" available to him to remain in this country. Further, at the time of making his visa application in the Philippines any alleged display of good conduct on his part can only to be seen in the context of him providing self-serving statements that would place him in the best light possible after his cynical and deliberate manipulation of the Australian immigration process. It was clearly far too little too late to redeem a situation that could have been confronted long before his departure from Australia. The character witness statements also fail to convince the Tribunal that Mr Blas is now a reformed individual. These statements were provided by persons who displayed no real knowledge of Mr Blas' immigration malpractice, and they were not made available to be cross-examined about their views.

EXERCISING THE DISCRETION

Policy

49. Having not been satisfied that Mr Blas 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 Mr Blas. 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.

(paragraph 2.2)

50. 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.

(paragraph 2.3)

51. In the present case only the first two of these primary considerations require attention, it not being contended that any Australian citizen child was involved in Mr Blas' application. In regard to the first consideration, 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:

(a) the seriousness and nature of the conduct;

(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).

(paragraphs 2.4-2.5)

52. 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.

(paragraph 2.6(c))

Protection and Expectations of the Australian Community

53. The nature of the conduct engaged in by Mr Blas 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 he had not been prosecuted nor convicted of any specific crime under the provisions of the Act. In a number of decisions the Tribunal has 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: see Lachmaiya v Department of Immigration and Ethnic Affairs (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). Mr Blas clearly failed to tell the truth throughout his encounters with the respondent's officials while in Australia as has already been indicated.

54. In his submissions made in regard to the exercise of the discretion Mr Ocon contended that there was no risk of Mr Blas re-offending if he were allowed to come to Australia. He also suggested that no deterrent impact would be gained by refusing a visa to Mr Blas. People would continue to make false applications. All that would happen in the future would be that people like Mr Blas would simply go underground, rather than behaving in a law abiding way by departing Australia and then making a valid claim for a visa in the Philippines. Mr Blas' faults had only been to believe what he had been told by the migration agents. He had placed full trust in these people in all of his dealings with them.

55. In her submissions Ms Fraser said that the Tribunal should reject these contentions made on behalf of the applicant. There would be a strong deterrent value in refusing the visa application made by Mr Blas. The Australian community was entitled to be protected against the risk of people like Mr Blas engaging in immigration fraud, as had been indicated in a number of recent decisions of the Tribunal: see Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575, per McMahon DP; Esguerra v Minister for Immigration and Multicultural Affairs [2000] AATA 554, per McMahon DP; May v Minister for Immigration and Multicultural Affairs [2000] AATA 480 (May). Ms Fraser also submitted that it was the expectation of the Australian community that a person in Mr Blas' position should not now be rewarded for the unlawful conduct in which he had engaged.

Other Considerations

56. Paragraph 2.17 of the Policy Direction refers to a number of other matters which, although not primary considerations, may be relevant to the exercise of the discretion under the Act. The Policy Direction states, in part, that:

2.17 It is the Government's view that where relevant, it is appropriate these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations 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 interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

* in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must 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.

(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 dependant 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;

(e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;

(f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);

(g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

(h) any evidence of rehabilitation and any recent good conduct;

(i) whether the application is for a temporary visa or permanent visa;

(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.

(Policy Direction 2.17)

57. In his submissions regarding this aspect of the exercise of the discretion Mr Ocon said that Mr Blas had been granted registration as a nurse during the time that he had been in Australia. It would now cause a disruption to his nursing career if he were unable to practice his profession in this country (paragraph 2.17(a) of the Policy Direction). There was also evidence of his rehabilitation and recent good conduct which has already been referred to (paragraph 2.17(h) of the Policy Direction). Mr Blas was not a criminal but rather a well educated person who had been misled by the professional advice provided to him by migration agents and solicitors. He should be allowed to come to Australia to exercise his skilled profession as a nurse.

58. Ms Fraser submitted that in relation to any hardship that might arise in regard to Mr Blas being able to practice in Australia there was no indication from the evidence that he could not obtain equivalent work as a nurse in the Philippines. The visa application should be refused.

CONCLUSION

59. As noted earlier the Policy Direction requires decision-makers to conduct a balancing process when exercising the discretion contained under s501(1) of the Act. Having regard to all of the evidence before it, and to the submissions of the parties, the Tribunal is of the firm opinion that in this case the two primary considerations of the protection and expectations of the Australian community far outweigh the other factors which have been advanced on behalf of the applicant to justify the granting of a visa. There may well be no risk of Mr Blas re-offending should he be allowed to come to Australia. However, this is only because he would have then achieved the objectives which he had set for himself originally when travelling to Australia a number of years ago. Mr Blas' actions amount to serious breaches of Australia's immigration laws and ones which deserve condemnation, even though they have not resulted in any criminal prosecutions. They are also breaches which must be of substantial concern to the entire Australian community who expect non-citizens to obey the laws of this country, and not to seek benefits and privileges to which they are not entitled while residing in this country. In the present case these benefits and privileges are associated with the refugee program maintained under the humanitarian and international obligations which Australia has to give protection to persons who are fleeing persecution and oppression in their own countries.

60. Significant cost and effort has without doubt been incurred by the Australian community in considering Mr Blas' various fraudulent applications. These costs are not only economic but also subversive in that they have required an already stretched refugee review process, which has to deal with thousands of legitimate refugee claims each year, to devote significant time and resources to consider these false applications. It is easy for general scepticism and cynicism to arise about the entire refugee process from revelations that fraud is involved in some claims, like those made by Mr Blas.

61. The Australian community does require and expect protection from this type of fraudulent behaviour and this outcome can be achieved, in part, through the refusal of visas to people like Mr Blas. The Tribunal rejects entirely the somewhat cynical and defeatist view voiced by Mr Ocon, in his submissions, that no deterrent value would be achieved in cases like these because it would simply make people even less willing to disclose their fraudulent behaviour and drive them underground. The deterrent message that should be conveyed in cases like these is that if people do engage in this type of systematic immigration fraud they should not anticipate any subsequent sympathy for their plight, nor anticipate a favourable outcome should they seek to migrate to this country. There should also be a clear appreciation by potential applicants that breaches of Australia's immigration laws are not minor peccadillos as would appear to be the belief espoused by Mr Blas and others who have been involved in similar actions in recent times. The penalties for violation of these laws are severe, as provisions like s234 of the Act indicate. It does not seem to be the policy of Australian immigration officials to prosecute under these provisions at present. This is, in the Tribunal's view, a mistake. Prosecutions would add substantially to the deterrent value and effectiveness of the compliance program administered by the respondent's officials.

62. The hardship which may arise from refusing Mr Blas the visa he seeks is of his own making. It is specious for him to now contend that he will not be able to practice as a registered nurse in Australia when this registration was only achieved as a result of his fraudulent behaviour. There is also uncontested evidence before the Tribunal (T: 245) that Mr Blas' wife appears to have been involved in a similar set of activities while residing in Australia during much of the same time period as Mr Blas. She too seems to have used the services of Mr Gonzales; engaged in study at the New South Wales College of Nursing; and obtained appropriate qualifications as a nurse in this country while awaiting the outcome of her refugee and related applications.

63. For the reasons which have been given the Tribunal affirms the decision under review. In doing so it wishes to add a short postscript concerning the revelations made in this case about the alleged conduct of Mr Gonzales and Mr Miranda. It would appear that at the time of providing the advice that they gave to Mr Blas, both of these persons were acting as licensed migration agents. The allegations made against them are very serious. The alleged pattern of conduct engaged in by these advisers also has a very familiar ring to it as is quite apparent from any reading of a number of recent decisions of this Tribunal: see, for example, May and Santos and Minister for Immigration and Multicultural Affairs [2000] AATA 567. Indeed, in the former decision the allegations made against Mr Gonzales are all but identical to those made in the present matter.

64. It does not require the skills of a Sherlock Holmes or Dr Watson to discern the nature of the systematic pattern of immigration fraud and abuse emerging from these cases. It is very disturbing, however, to realise that it is a pattern which appears to have been allowed to continue over a substantial period of time without effective actions being taken to investigate and prosecute those responsible. It would appear that rather than Holmes and Watson at the investigative helm, Inspector Clousseau is the person who has been in charge of any activities which may have been conducted to detect and deter what appears to be gross misconduct on the part of certain persons who have been allowed to practice their professions as migration agents.

65. It should also be stated that there are some suspicions that this behaviour may have gone unreported, if not undetected, because of the manipulation of the registration and related system for the lodging of applications. In the present case, although it did not prove to be a material factor, it was alleged by Mr Blas that he had at no time lodged his protection visa application in person even though a receipt issued by the respondent suggested that he had both lodged and paid the appropriate registration fee (see T: 71). On both the protection visa application and the lodgment form, no mention is made of any involvement in its preparation by Mr Gonzales. A similar situation prevailed in the cases of May and Santos. It may be that in this case Mr Blas was not telling the truth but there would not appear to be a reason to disbelieve him on this particular matter. It is a situation which does point to the possibility of some assistance being provided from within the respondent's own organisation in the filing of certain types of fraudulent applications by particular migration agents.

66. Finally, Mr Ocon in his submissions at the conclusion of the hearing referred to a poster which had been displayed in immigration offices which encouraged persons to use the services of migration agents. He suggested that Mr Blas had followed this official encouragement in relying upon the services of Mr Gonzales and Mr Miranda. The same poster also asked anyone who had a complaint to make about a migration agent to express it to Migration Agents' Registration Board (MARB). In Mr Blas' case there was no suggestion that he had made any complaint to this regulatory body about the concerns which his aunt, Ms Gaculais, said he had about the advice that he had received. Ms Gaculais herself also seems to have made no complaint to MARB on his behalf. Perhaps through the publicity associated with cases like this it may now be more likely that complaints will be made by people who do suffer as a result of the unscrupulous activities of certain migration agents, and that these activities will be brought to a rapid end through the deregistration of such agents and, where appropriate, their prosecution for criminal acts.

I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President

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

Associate

Date/s of Hearing 21 August 2000

Date of Decision 25 August 2000

Solicitor for the Applicant Mr Bert Ocon, Migration Agent

Solicitor for the Respondent Ms Susan Fraser