Turini and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 229 (9 April 2002)

Last Updated: 10 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 229

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1048

GENERAL ADMINISTRATIVE DIVISION )

Re Raul Turini

Applicant

And Minister for Immigration Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date 9 April 2002

Place Sydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion in s 501(1) of the Migration Act 1958 should be exercised not to refuse the grant of a subclass 309 visa to Zenaida Turini.

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

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION - Spouse visa - character test - past and present conduct - discretion to be applied if applicant does not pass the character test - need to balance other considerations including hardship to the applicant and his family against expectations of the Australian community.

Migration Act 1958 ss 499, 499(1) (2) (2A), 501, 501(1) (6), 501(6)(c)

Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Rokobatani v Minister for Immigation ad Multicultural Affairs (1999) 90 FCR 583

Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731

Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822

REASONS FOR DECISION

9 April 2002 R P Handley

1. This is an application by Raul Turini ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 17 January 2000 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Zenaida Turini ("the Visa Applicant") (hereinafter referred to by her maiden name "Mallari"). At the hearing, the Applicant was represented by Mark Robinson, of Counsel, and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given in person by the Applicant and by telephone by Peter Clark-Saunders.

BACKGROUND

2. The Applicant, Mr Turini was born in Uruguay on 23 March 1959 and is aged 43. He migrated to Australia with his family arriving on 18 March 1971 and became an Australian citizen on 2 September 1975. He is a master jeweller.

3. Ms Mallari was born in the Philippines on 8 July 1963 and is aged 38. She first came to Australia on a visitor visa valid for 3 months, arriving on 17 March 1996. On 19 March 1996, she applied for a protection visa which was refused on 28 June 1996. This decision was affirmed by the Refugee Review Tribunal ("RRT") on 22 April 1997. On 7 May 1997, Abel Miranda of Davidson James and Associates, Solicitors, sought ministerial intervention on Ms Mallari's behalf. On 14 January 1998, the Minister refused to intervene.

4. In April 1997, Mr Turini and Ms Mallari met through mutual friends. Thereafter, they saw each other regularly, became friends and, gradually, a deeper relationship developed. In particular, the relationship became closer following Mr Turini's and Ms Mallari's attendance at a friend's christening on 12 April 1998. On 11 July 1998, Mr Turini asked Ms Mallari to marry him. She accepted and they were married at St. Vincent's Catholic Church at Ashfield on 5 September 1998. Following the wedding, Mr Turini and Ms Mallari went to the Blue Mountains for their honeymoon but, on 8 September 1998, Ms Mallari became ill and had to return to Sydney where she was hospitalised. She underwent surgery on 9 September 1998. On being discharged from hospital on 15 September 1998, Ms Mallari was detained by departmental officers and taken to the Villawood Immigration Detention Centre ("Villawood") where she was held for 24 hours before being released on 16 September 1998, when she was granted a Bridging Visa E. On 14 October 1998, Ms Mallari returned to the Philippines.

5. On 16 October 1998, Ms Mallari lodged an application for a subclass 309 spouse visa at the Australian Embassy in Manilla. Ms Mallari was interviewed by a departmental officer at the Embassy on 29 October 1998 and again on 2 August 1999. On 17 January 2000, a delegate of the Respondent refused Ms Mallari's application for a subclass 309 visa. On 4 February 2000, a solicitor instructed by Mr Turini lodged an application for a review of this decision by the Tribunal. On 14 August 2000, the Tribunal decided to affirm the decision under review: Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731. On 11 September 2000, Mr Turini sought judicial review of the Tribunal's decision by the Federal Court and, on 29 June 2001, the Federal Court handed down its decision setting aside the Tribunal decision and remitting the matter to the Tribunal to be heard and decided again: Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822.

RELEVANT LAW

6. Under s 501(1) of the Act, 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. The character test is set out in s 501(6) which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:

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. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:

Either

(a) the applicant satisfied the Minister that the applicant passes the character test; or

(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.

8. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".

9. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

10. The issue for the Tribunal to determine in this case is, therefore, whether Ms Mallari is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

EVIDENCE

Zenaida Mallari (the Visa Applicant)

11. Ms Mallari said she came to Australia to visit her sister Rose. She had no plan to work in Australia before arriving and only formed this plan when in Australia when it was suggested by her friend's sister, Remy. Remy suggested she could work if she applied for a protection visa. Remy obtained a protection visa application form for her and invented the false story of persecution. She then went with Ms Mallari to the Department to lodge the form. Ms Mallari's application was refused on 28 June 1996. At about that time, she consulted a migration agent, Abel Miranda of Davidson James & Associates, Solicitors. Mr Miranda advised her that she should lodge an appeal with the RRT so that she could keep working. He then did so on her behalf on her paying a fee of $1,500. Ms Mallari said Mr Miranda did not explain the process to her, but gave her hope. When her appeal to the RRT was rejected on 17 March 1997, Mr Miranda advised her to seek intervention by the Minister. He wrote such a letter on her behalf on payment of a further fee of $500. Mr Miranda told her that she could stay in Australia and work legally because her application was still being processed. Ms Mallari said she never saw the letter Mr Miranda wrote to the Minister.

12. Ms Mallari was asked when she first showed remorse for her actions. She said that she had expressed her remorse and said she was sorry at the interview at the Embassy in Manilla on 29 October 1998, when she was interviewed by a Philippino lady, and on 2 August 1999 when she was interviewed by Miren Galloway. Ms Mallari rejected the claim made by the Departmental Delegate, Geoff Heath, that she had not expressed remorse for her actions. Ms Mallari said the first time she expressed her remorse in writing may have been in her statement dated 5 July 2000. Ms Mallari said she had told the truth to the officers who had interviewed her at the Embassy in Manilla because she wanted to be honest with them.

13. Ms Mallari acknowledged that she became an unlawful resident 28 days after notification of the refusal of ministerial intervention on 14 January 1998. Thereafter, she was in Australia unlawfully until the issue of a bridging visa on 16 September 1998. Ms Mallari said she had told her husband of her unlawful status and it was for this reason that they consulted Brett Slater, Solicitor, shortly after their engagement on 11 July 1998. Ms Mallari acknowledged that she had been detained on her release from hospital on 15 September 1998 and then released on 16 September 1998 when she was granted a Bridging Visa E which permitted her to stay in Australia lawfully until 15 October 1998. She returned to the Philippines on 14 October 1998.

14. Since that time, Ms Mallari said her husband has visited her four times, staying approximately one month on each occasion. Ms Mallari said she is not currently employed but is undertaking telephone advertising work for a networking company for which she is paid by commission. She and her husband have enquired about the possibility of his getting work in the Philippines, but it would be hard for him to find a job because of his age and because there are already many jewellers in the Philippines.

15. Ms Mallari said she is a practising Catholic and attends mass every Sunday. She accepts the Church's teachings including that she cannot divorce her husband in the eyes of the Church. She loves him very much and wants to be with him. She and her husband were married by a Catholic priest in Sydney at St. Vincent's Church at Ashfield, with more than 100 guests attending. She said she and her husband wish to have children as soon as possible. Ms Mallari said that on her husband's last visit to the Philippines between December 2001 and January 2002, he kept a diary. Ms Mallari was referred to photographs of children at an orphanage (A30). She said this is an orphanage for abandoned children, and she and her husband went there at Christmas time to donate some items including biscuits, toys and clothes for the children. She acknowledged that she had not attended this orphanage for a long time but had done so on three occasions when she was at school or college.

Raul Turini (the Applicant)

16. Mr Turini said he is a master jeweller, which includes his making jewellery by hand so that it can be cast. He is currently employed full-time. Mr Turini said he was aware of his wife's protection visa application prior to their marriage and of the false story that she had given. He and his wife went to consult Mr Slater to discuss the earlier false application. Mr Turini said he would have engaged Mr Slater sometime before Mr Slater's letter of 2 September 1998 (T p136).

17. Mr Turini said his religion is very important to him. He is a practising Catholic and goes to church every Sunday. He accepts the Church's teachings and laws, including that, being married to his wife, they can never be parted.

18. Mr Turini said he has visited his wife in the Philippines four times for approximately a month on each occasion. His last visit was between December 2001 and January 2002, during which time he kept a diary, from which a typed statement had been prepared dated 8 March 2002 (A21). He said it was his wife's idea to attend the children's refuge. She wanted to do this because she loves children. Mr Turini said he has looked for jobs in the Philippines in the jewellery industry and knows it will be very hard for him to get a job. It was also hard to live in the Philippines.

19. Mr Turini said he now phones his wife using telephone cards because he has found it is easier to budget for the cost of telephone calls in this way. He has accumulated between 100 - 200 used cards, with an average value of $10, over the past year. He also sends his wife SMS messages to her mobile phone every morning and afternoon. Mr Turini said their wedding presents remain unopened in his bedroom at his parents' home where he is currently living. The presents were never opened because his wife became ill during the course of their honeymoon and, on her release from hospital, she was arrested and then had to leave the country within a relatively short period thereafter.

Peter Clark-Saunders

20. Mr Saunders confirmed that his report dated 21 December 2001 (A7) is true and correct. Mr Saunders said he has qualifications in clinical and forensic psychology, experience in working for a variety of institutions, and has been in private practice for the past 2½ years. He has dealt with people presenting with a whole range of "offending" evidence on which he as prepared reports for the courts and also for the Victims' Compensation Tribunal. More recently, he has been taking an interest in immigration cases.

21. With regard to Ms Mallari's psychological profile, Mr Clark-Saunders said that Ms Mallari had told him that her protection visa application included a false story made up for her by Remy. Ms Mallari said she had been easily influenced and is genuinely sorry for her actions. Mr Clark-Saunders said Ms Mallari did not realise the consequences of her behaviour and regretted that she had lied and had not been honest with the Department. Mr Clark-Saunders said Ms Mallari was genuinely upset about what she did, realised she had made a serious mistake and was sorry for doing so. Since that time, she has reflected on her behaviour and wishes to be of good character for the future. It has been a salutatory lesson for her, and her having told the truth is an indication of her having reflected on her conduct.

SUBMISSIONS

Applicant

22. Mr Robinson, for the Applicant, said his client concedes that Ms Mallari does not pass the character test. No issue is taken with the first 21 paragraphs of the Tribunal's Statement of Reasons in the previous proceedings, with the exceptions of paragraphs 16 and 17. In paragraph 16, the Applicant says he and his wife saw Mr Slater later than 28 July 1998 and nearer to September 1998. Mr Robinson also took issue with the assumption made by Deputy President McMahon in paragraph 16 as to the advice given to Ms Mallari at that meeting. Thus, Mr Robinson disagreed with the use of the word "nevertheless" in introducing paragraph 17.

23. Turning to Part 2 of Direction No. 21 and the exercise of the Minister's discretion under s 501(1) of the Act, Mr Robinson noted that the statement in paragraph 2.17 that other matters which are not primary considerations should "generally ... be given less individual weight than that given to the primary considerations", should be read subject to paragraph 2.2 which provides that decision-makers should "adopt a balancing process which takes into account all relevant considerations". Mr Robinson submitted that, in the present case, the continuing hardship to Mr Turini and his parents is a compelling factor in the exercise of the Tribunal's discretion.

24. With regard to the Protection of the Australian Community, Mr Robinson noted Ms Mallari's evidence that she said she was sorry at the interviews at the Australian Embassy in Manilla on 29 October 1998 and 2 August 1999. Since there is no record of these interviews, this cannot be disproved. Mr Robinson said Ms Mallari "freely admitted to deceiving DIMA to remain and work" in Australia (Tp248), notwithstanding that such an admission clearly damaged her position.

25. Mr Robinson contended that Ms Mallari's conduct, whilst most serious, is not in the same category as the most serious Australian offences. For example, at the relevant time, the prescribed penalty for a breach of s 234 of the Act was two years imprisonment. Mr Robinson submitted that there is a negligible risk to the Australian community of Ms Mallari committing any crime in the future. This is supported both by the Clinical Psychologist, Judith Withers (A5), and the Clinical and Forensic Psychologist, Peter Clark-Saunders (A7). Mr Robinson said there will be minimal general deterrence effect if Ms Mallari's visa application is refused. She has now been separated from her husband for a period of three years and six months and has been punished enough. He noted that Ms Mallari had been advised by Abel Miranda, a Migration Agent, who systematically engaged in criminal activities in promoting bogus and hopeless claims. Mr Miranda charged Ms Mallari a large amount of money without providing her with proper advice and doing very little for her.

26. With regard to the Expectations of the Australian Community, Mr Robinson noted that the community is diverse and that Roman Catholics are the largest religious group. He noted that both Mr Turini and Ms Mallari are practising Catholics and, according to their religion's laws and teachings, they have a valid life-long marriage and cannot divorce in the eyes of the Church, unless there are grounds for an annulment. Mr Robinson referred the Tribunal to an article in the Law Institute Journal on this (A29).

27. Mr Robinson said that the proportion of the Australian population who are Roman Catholics would appreciate the dilemma facing Mr Turini and Ms Mallari, and the Australian community would be likely to accept that this couple should not be required to live the rest of their lives separately and apart, and that Ms Mallari had been punished enough for her past bad conduct. Finally, Mr Robinson submitted that with reference to recognition of the family unit under Article 23.2 of the International Covenant on Civil and Political Rights, there are significant compassionate circumstances supporting a determination that will permit them to live in Australia as husband and wife.

Respondent

28. Mr Allatt, for the Respondent, said the recent changes accommodated in Direction No 21 follow the series of Federal Court decisions including that in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. As a result, the Respondent submits that decision-makers are not fettered by the requirements of Direction No 21.

29. Mr Allatt submitted that Ms Mallari was engaged in migration fraud. He acknowledged that there are mitigating circumstances, identified by Mr Clark- Saunders (A7), in that she was easily lead by her sister's friend, Remy. With regard to the conduct of Mr Miranda, Mr Allatt noted Ms Mallari's evidence that she had not seen the letter, which Mr Miranda sent to the Minister seeking intervention on her behalf, and that she had not been properly advised by Mr Miranda. However, the Respondent submits that Ms Mallari would have been happy to accept whatever advice she could obtain to enable her to stay and work in Australia.

30. Mr Allatt contended that Ms Mallari committed serious migration fraud by lodging a false refugee claim in 1996. The Respondent contends that by affirming the decision not to grant Ms Mallari a visa, other people would generally be deterred from seeking to gain entry or obtain residence in Australia by making false protection visa applications or submitting applications containing false and misleading information. With regard to the likelihood of repetition, Mr Allatt noted that although Ms Mallari's first written statement of remorse was made in July 2000, her evidence was that she had said sorry at the interviews at the Australian Embassy in Manilla in 1988 and 1999. However, Mr Allatt questioned whether Ms Mallari was sorry about the conduct itself, rather than its effect in terms of impeding her later spouse application. With respect to the Expectations of the Australian Community, Mr Allatt contended that a person, who has made and acknowledged a false application for a protection visa, should not be permitted to remain in Australia, notwithstanding the apparently genuine marriage relationship to an Australian citizen.

31. With regard to Other Considerations, Mr Allatt noted that Mr Turini was aware of his wife's immigration status before they got married. While the Respondent acknowledges the undoubted hardship caused to Mr Turini, Ms Mallari and Mr Turini's parents, nevertheless, the Respondent submits that the protection of the Australian community and the expectations of the community outweigh such other considerations. The Respondent therefore contends that the discretion in s 501(1) should not be exercised in Ms Mallari's favour.

APPLICATION OF THE LAW AND FINDINGS

32. The Applicant accepts that Ms Mallari does not pass the character test by virtue of s 501(6)(c) of the Act having regard to "the person's past and present general conduct". The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of "good character" in section 501 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. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry...

33. Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Ms Mallari does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of the discretion.

34. Firstly, the Tribunal is not satisfied that Ms Mallari is of good character having regard to her past and present general conduct. Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case is paragraph 1.9(b), which directs the decision-maker to consider:

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.

35. As stated above, the Applicant accepts that Ms Mallari is not of good character and excepting parts of paragraphs 16 and 17, takes no issue with paragraphs 1 - 21 of the previous Tribunal decision in this matter made by Deputy President McMahon in Turini (supra). The present Tribunal notes Ms Mallari's evidence that her protection visa application lodged on 19 March 1996 made false or misleading statements in that the claims made in that application were a fabrication. This is a matter to which the Tribunal can have regard pursuant to paragraph 1.9 of Part 1 of Direction No. 21 in considering whether a non-citizen is not of good character because of her past and present general conduct. The Tribunal notes that the provision of such false information should be regarded as serious, and therefore determines, pursuant to s 501(6)(c), that Ms Mallari does not pass the character test having regard to her past and present general conduct.

36. Having so determined, the Tribunal must consider the exercise of the residual discretion under s 501(1) to decide whether, notwithstanding her not passing the character test, not to refuse the grant of a visa to Ms Mallari. In doing so, the Tribunal will have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.

37. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

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

38. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes under the Migration Act which, in turn, include providing false or misleading statements. The Tribunal notes the emphasis given in a number of decisions to the importance of observing the truth when dealing with officials in migration matters. For example, in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:

The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.

39. The Tribunal finds that Ms Mallari was easily lead by her sister's friend, Remy, into completing an application for a protection visa including a story suggesting a risk of persecution which was concocted by Remy. The Tribunal finds that Ms Mallari followed Remy's advice without giving any proper thought to the consequences, in the hope that she would be permitted to stay and work in Australia. After her application was refused on 28 June 1996, Ms Mallari consulted a Migration Agent, Abel Miranda, who was known to have many clients from the Philippines and was recommended to Ms Mallari by members of the Philippines community. Mr Miranda advised her that she should lodge an appeal with the RRT, for which he charged a fee of $1,500, because this enabled her to continue working. Ms Mallari said he also gave her hope that she might be able to remain in Australia. When the RRT affirmed the decision to refuse her application for a visa, she again consulted Mr Miranda who, on payment of another $500, offered to write a letter to the Minister seeking ministerial intervention on her behalf. The Tribunal accepts Ms Mallari's evidence that she never saw this letter.

40. The Tribunal is aware of Mr Miranda having been sentenced in the NSW District Court on 25 May 2001 to a significant term of imprisonment and to Judge Shadbolt's comments concerning "the outrageous sums of money Mr Miranda took from people and the jeopardy he placed them in when handling their migration applications". While in this case Mr Miranda did not concoct the story included in Ms Mallari's protection visa application, it seems clear that he was willing to charge her a substantial sum of money without giving her proper advice. The Tribunal accept Ms Mallari's evidence that she has said "sorry" for her conduct and expressed remorse on numerous occasions including when interviewed by departmental officers at the Australian Embassy in Manilla on 29 October 1998 and 2 August 1999.

41. Mr Turini and Ms Mallari met in April 1997 through mutual friends, and their relationship became close in April 1998. Mr Turini formally proposed to Ms Mallari in front of friends on 11 July 1998. Between the time of their engagement and early September 1998, they consulted a Solicitor, Brett Slater, to discuss Ms Mallari's immigration status and, in particular, her protection visa application, including the fabricated story of persecution. It appears that Mr Slater advised Ms Mallari to return to the Philippines after their wedding on 5 September 1998 (T p136). However, having been taken ill during the course of their honeymoon, Ms Mallari was hospitalised. Then, on 15 September 1998, on returning to work, she was detected by immigration officers and taken to Villawood. Mr Slater was already preparing an off-shore spouse application at that time. The Bridging Visa E on which Ms Mallari was released from Villawood required that she leave the country by 15 October 1998.

42. Ms Mallari departed Australia on 14 October 1998 and her spouse visa application was lodged at the Australian Embassy in Manilla on 16 October 1998. Mr Turini and Ms Mallari have, therefore, now been separated for a period of three years and six months, although Mr Turini has made about four visits, each of approximately a month, to the Philippines during that period, most recently between December 2001 and January 2002. Having heard their evidence, the Tribunal has no doubt that theirs is a genuine, loving relationship and they are distraught at being separated. The Tribunal notes that both are practising Catholics and regard their commitment to one another as one which is life-long. The Tribunal accepts Mr Turini's evidence that he has enquired about the possibility of his working in the Philippines, but has formed the view that it will be very difficult for him to obtain employment because of his age and also because there are many jewellers working there.

43. Returning to a consideration of the relevant paragraphs of Direction No. 21, the Tribunal notes that paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated, including any risk of recidivism, and general deterrence - the likelihood that visa refusal or visa cancellation would prevent or inhibit the commission of like offences by other persons. Whitlam J in Turini (supra) at paragraph 30, said the Tribunal was bound to take into account the likelihood of a person re-offending in assessing the risk to the community posed by the entry of the person to Australia: this factor was a part of the applicant's case, and the Tribunal was not entitled to ignore it. Such an aspect of a primary consideration was significant where the Tribunal plainly regarded the applicant's wife's earlier conduct as criminal. The failure to take into account this relevant consideration was an error of law.

44. The Tribunal notes the reports of Judith Withers, Clinical Psychologist, dated 1 May 2000 (A5) and Peter Clark-Saunders, Clinical and Forensic Psychologist and Criminologist dated 21 December 2001 (A7). Ms Withers concluded her report by saying that Mr Turini:

is, in my opinion suffering considerable emotional and financial hardship as a result of the continued separation from his wife. His hardship and the difficulties he is facing are having a profound effect on his parents, who are facing the prospect of having to console Raul over the loss of Zeni, or the prospect of losing him and any access to their (future) grandchildren if he goes overseas to be with her.

45. Mr Clark-Saunders gave evidence that Ms Mallari is genuinely sorry for her actions, did not realise the consequences of her behaviour at the time, and is genuinely upset about what she did and realises that she made a serious mistake. She acknowledged to Mr Clark-Saunders that she was easily lead astray by Remy, learnt a salutatory lesson from what happened, and, having reflected on her behaviour, wishes to be of good character in the future. Mr Clark-Saunders said the fact of Ms Mallari having openly admitted the fabrications contained in the protection visa application, is an indication that she is now telling the truth. In his report (A7), Mr Clark-Saunders said his assessment of Ms Mallari demonstrated that she is "unlikely to re-offend or act in a way which is dishonest or corrupt in the future". Relying on this evidence and on the oral evidence of both Mr Turini and Ms Mallari, the Tribunal finds that the likelihood of Ms Mallari re-offending is negligible. With regard to general deterrence, the Tribunal recognises that people should be deterred from making false or misleading statements for the purpose of obtaining visas.

46. The second primary consideration is the Expectations of the Australian Community. In the present case, the Australian community may expect that a person who has given false information should not be granted a visa. However, the Tribunal notes the discussion of the equivalent paragraph in Direction No. 17 by Deputy President McMahon in Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 34, that in addition to the statement in paragraph 2.12, "there would be a general expectation in the community that the Act would be administered fairly and humanely". Given that Mr Turini and Ms Mallari have been living separately for 3½ years and, acknowledging their religious beliefs as practising Catholics, in the Tribunal's opinion the community might, in this case, take a more humane view and be sympathetic to Mr Turini's and Ms Mallari's plight.

47. The third primary expectation is the Best Interests of the Child or Children in a parental or other close relationship with the Visa Applicant. There are no such children in this case, although the Tribunal notes Mr Turini's and Ms Mallari's expressed desire to start a family in the near future.

48. Paragraph 2.17 of Direction No. 21 notes that the decision-maker may take into account "Other Considerations" where relevant. These may include: genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; any hardship which would be caused to the parties; and any evidence of rehabilitation and any recent good conduct.

49. As noted above, the Tribunal has no doubt that the marriage relationship between Mr Turini and Ms Mallari is a genuine one. Mr Turini has been an Australian citizen since 2 September 1975 and is currently living with his parents who provide him with emotional support. The Tribunal notes that Mr Turini was aware of his wife's unlawful immigration status at the time of their marriage, and that, prior to this time, he and Ms Mallari had consulted a solicitor who was in the process of preparing the necessary spouse visa application with a view to Ms Mallari departing Australia and lodging this in Manilla. In his report (A7), Mr Clark-Saunders found that Mr Turini is suffering from sadness and loneliness caused by the separation from his wife. Mr Clark-Saunders said that, in his opinion, Mr Turini's lengthy separation from his wife "has caused significant and substantial psychological distress and emotional suffering". Mr Clark-Saunders also noted that Mr Turini's "entire family reside in Australia and his parents are approaching old age". Ms Withers, who also interviewed Mr Turuni's parents, commented that they:

are very concerned about Raul's future and his distress about the separation from his wife. They support Raul emotionally and feel powerless to help him to be happy.

50. A balancing of the primary and other considerations leads the Tribunal to conclude that the discretion in s 501(1) should be exercised in Ms Mallari's favour, so as not to refuse the grant of a visa. In the Tribunal's opinion the particular circumstances of Ms Mallari offending, the negligible risk to the Australian community and the humane view of Mr Turini's and Ms Mallari's situation which might be taken by that community when seen against the background of the hardship to both Mr Turini and Ms Mallari and his parents, indicates that this is an appropriate case in which the discretion should be exercised in Ms Mallari's favour.

51. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion in s 501(1) should be exercised not to refuse the grant of a subclass 309 visa to Ms Mallari.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

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

Associate

Date of Hearing 11 March 2002

Date of Decision 9 April 2002

Representative for the Applicant Mr G Lombard

Representative for the Respondent Mr M Allatt