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Administrative Appeals Tribunal of Australia |
Last Updated: 4 August 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
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Re |
Michael Foley |
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And |
Minister for Immigration and Multicultural and Indigenous Affairs |
Tribunal |
Mr RP Handley, Deputy President |
Decision
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The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Bebesita Ganura. |
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Deputy President
CATCHWORDS
IMMIGRATION - subclass 309 spouse (provisional) visa and subclass 100 spouse (migrant) visa - character test - Visa Applicant refused visa on the basis that she is not of good character because of her past and present general conduct - examination of the Visa Applicant's immigration history - conceded that the Visa Applicant does not pass the character test - discretion that the Tribunal may exercise where the Visa Applicant fails the character test - necessity to balance the expectations and protection of the Australian community against hardship to the Applicant - held that the discretion should be exercised in favour of the Visa Applicant - decision under review set aside - discretion to not refuse the grant of a visa should be exercised in favour of the Visa Applicant.
Migration Act 1958 ss 499, 501, 501(6)(c)
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Tremlett v Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1244
23 July 2003 |
Mr RP Handley, Deputy President |
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1. This is an application by Michael Foley ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 28 September 2001 to refuse the grant of a subclass 309 spouse (provisional) visa and subclass 100 spouse (migrant) visa to the Applicant's spouse, Bebesita Ganura ("the Visa Applicant").
2. At the hearing, the Applicant was represented by Paul Fergus, Solicitor, of McDonells, Solicitors, and the Respondent was represented by Elizabeth Warner, 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 other documents tendered by the parties at the hearing. The Applicant gave evidence in person and the Visa Applicant gave evidence by conference telephone.
Background
3. The Applicant, Michael Foley, was born in Sligo, Ireland, on 22 November 1938 and is aged 64. Mr Foley arrived in Australia on 16 February 1964 and became an Australian citizen on 19 September 1983. On 21 June 1963, he married his first wife, Patricia Maria Foley. Mrs Foley died on 4 October 1993 after a long illness. There were two children born of that relationship, Patrick Thomas Foley, born on 14 April 1965, and Bernadette Mary Foley, born on 24 May 1971 (T p113). Patrick Foley died of acute myeloid leukaemia on 9 May 2003.
4. The Visa Applicant, Bebesita Ganura, was born in Cantilan, Surigao Del Sur Province on the island of Mindanao in the Philippines on 15 August 1954 and is aged 48. Between 1977 and 1993, Ms Ganura lived with Juan Ganura. They were married on 9 November 1977 (Tp148). However on 8 August 2000, the marriage was subsequently annulled by the Republic of the Philippines Regional Trial Court, when the Court found that Mr Ganura was already legally married at the time of his marriage to Ms Ganura (T pp147-151). There were three children born of this relationship: Jovy John Ganura, born on 20 July 1978, now aged 25, Jared Peter Ganura, born on 18 June 1982, now aged 21, and Pilarsita Day Ganura, born on 24 November 1989, now aged 13 (T p114).
5. Ms Ganura came to Australia on 7 October 1997 on a visitor visa valid for two months. On 17 November 1997, she applied for a protection visa and associated bridging visa (T p63). On 16 December 1997, a delegate of the Respondent refused to grant the protection visa (T p88). The decision was affirmed by the Refugee Review Tribunal ("RRT") on 3 July 1998 (T9 p92).
6. In late November 1997, Mr Foley met Ms Ganura in Sydney. They commenced living in a de facto relationship on 29 January 1998 (T p126).
7. By letters dated 28 and 29 July 1998 respectively, Ms Ganura and Mr Foley applied for ministerial intervention on her behalf (T10 p100). This was refused on 10 June 1999 (T p102). On 7 July 1999, Ms Ganura departed Australia.
8. On 20 August 1999, Ms Ganura lodged an application for a subclass 309 spouse (provisional) visa and subclass 100 spouse (migrant) visa at the Sydney Regional Office of the Respondent (T pp103-135). The application included an application for residence for two of Ms Ganura's children from her former relationship, Jared Peter Ganura and Pilarsita Day Ganura.
9. On 1 April 2001, Mr Foley and Ms Ganura were married in Ms Ganura's home town of Cantilan (T p141). On 10 September 2001, Mr Foley and Ms Ganura were interviewed by a Senior Migration Officer at the Australian Embassy in Manilla. On 28 September 2001, a delegate of the Respondent decided to refuse the grant of a visa to Ms Ganura on the ground that she is not of good character because of her past and present general conduct, and having declined to exercise the Respondent's discretion under s 501(1) of the Migration Act 1958 ("the Act") (T p14). The delegate, on the basis that Ms Ganura's application had been refused, also refused the grant of visas to Mrs Ganura's two children (T p23).
10. On 23 October 2001, the Applicant lodged an application for a review of this decision with the Tribunal.
Relevant Law and Policy
11. 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), and 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) (ii), that "having regard to the person's past and present general conduct ... the person is not of good character".
12. 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".
13. 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.
14. The issue for the Tribunal to determine in this case is, therefore, whether Ms Ganura 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 (provisional) visa and subclass 100 spouse (migrant) 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
Michael Foley (the Applicant)
15. Mr Foley said he first met Ms Ganura in late November 1997 when they were introduced by a friend. They commenced living together in January 1998. Early on in their relationship, probably before they commenced living together, Ms Ganura told him of her application for a refugee visa and that her appeal was to be heard by the RRT. She told him that, on the advice of her solicitors, she had claimed in her application that her husband was involved in drugs, that he was "after her" and that she feared for her life. Mr Foley felt it was "not right" to make such false claims and that Ms Ganura was "being got at". He suggested that they try and "sort it out" and withdraw the application - although they did not know how to do this.
16. They went to see her solicitor in Parramatta to see what could be done to "sort it out". She advised that it was too late to withdraw the application which was already before the Tribunal, and assured them that everything would be all right. Mr Foley thought it would be preferable to go directly to the Department but decided to rely on the solicitor's advice assuming she knew what she was talking about. He was totally ignorant of migration law. He and Ms Ganura also went to a free legal service to consult another solicitor. Mr Foley could not recall if he told the solicitor about the false claims. The solicitor advised that if the appeal was refused, their only recourse was to seek ministerial intervention.
17. Mr Foley recalled the interview with a Senior Migration Officer, Geoff Heath, at the Australian Embassy in Manilla on 10 September 2001. In cross-examination, Mr Foley denied that he had sought to conceal from Mr Heath that his wife had made false statements in her protection visa application. He did not deliberately mislead Mr Heath about anything, and at no time did he set out to defraud the Australian Government.
18. Mr Foley said he thought Ms Ganura had not paid the whole $6,000 requested by her solicitor for making the protection visa application. Ms Ganura paid by instalments and later pulled out. He agreed that on one or two occasions he had helped Ms Ganura with her payments when she was short of money.
19. Mr Foley said he has only been to Mindanao once - it is a very impoverished place. Since his stroke last year when, at first, he was paralysed down the left side of his body, he has had regular blood tests because of the Warfarin he is taking. While if his health was good he would have considered living with his wife in the Philippines, it would "require suicidal tendencies" for him to do so now. Fortunately, at the time he had the stroke he was physically strong, and so he has been able to recover some mobility and some of the sensation in his left side. He is still having difficulty with his left hand and, for example, continues to have difficulty cooking as a result. He tries to make the best of it.
20. Mr Foley said his former wife, who was an Australian, suffered a long illness before she died, during which he cared for her. There were several periods when he was unable to work because of her care needs when he preferred to live off his savings rather than claim Social Security benefits. His son, who lived with him and to whom he was very close, died of acute myeloid leukaemia on 9 May 2003, having been diagnosed in November 2002. Mr Foley said he has had great difficulty coping with son's passing on top of being separated from his wife for four years apart from his visits to the Philippines. He said his daughter and her partner live in Croydon in Sydney. She phones him about three times a week and he sees her fairly regularly.
21. Mr Foley is reliant on Newstart Mature Age Allowance as his only source of income. He lives in a rented house and has no significant assets.
Bebesita Ganura (the Visa Applicant)
22. Ms Ganura arrived in Australia in October 1997 on a visa valid for three months. She had worked with her sister in a restaurant in Abu Dhabi for about two years, returning to the Philippines in 1996. She came to Australia for a visit in 1997, intending to return to the Philippines, but decided to try and extend her stay so that she could visit Victoria and her cousin on the Gold Coast. She was advised by friends that she would probably only get an extension of one month if she approached the Department so, at her friends' suggestion, she went to see a Filipino solicitor at Parramatta. She wanted an extension to her visa of two or three months but still intended to return to the Philippines afterwards. She acknowledged that her intentions changed after she commenced a de facto relationship with Mr Foley. However, before their relationship, her preference was to return home to the Philippines on the expiry of her visitor visa.
23. Ms Ganura said she knew nothing of immigration law and although she is educated person with a Bachelor of Science in Home Economics (she studied for four years between 1972 and 1976), she put her trust in the Filipino solicitor. The solicitor asked her to pay $6,000. Ms Ganura did not have this sum and asked if she could pay by instalments. The solicitor agreed, requiring that Ms Ganura pay instalments of $200 to $300 on each visit. Ms Ganura said she paid a total of between $3,000 and $4,000 before she ceased seeing the solicitor.
24. The solicitor told Ms Ganura not to worry about the false claims in the protection visa application. She could always drop the application later. Ms Ganura said she knew what she was doing was wrong but it all happened so quickly and she got into a mess. After she met Mr Foley, they went to see the solicitor to ask her to withdraw the RRT application, but the solicitor said it was too late to stop the application proceeding. The solicitor assured them that everything would be OK and that they should not worry. Ms Ganura said she realises now that she should have gone straight to the Department about the matter. This was her biggest mistake and she very much regrets what happened.
25. Ms Ganura said she and Mr Foley also consulted a free legal service who advised her that she should appeal to the Minister.
26. Ms Ganura remembered her interview with Geoff Heath, the Senior Migration Officer at the Australian Embassy in Manilla on 10 September 2001. She said she told him of her dealings with the solicitor at Parramatta and the truth of what had happened. First, Mr Heath interviewed her on her own for a period of less than an hour and then he conducted a second interview with her and her husband. She agreed in cross-examination that she told Mr Heath that she would never have done such a thing in the Philippines.
Submissions
Applicant
27. Mr Fergus, for the Applicant, said the Applicant concedes that the Visa Applicant does not pass the character test. However, the Applicant contends that this is an appropriate and deserving case for the exercise of the discretion in s 501(1) of the Act. Mr Fergus sought to distinguish this case from that of Re Tremlett v Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1244 where the Visa applicant denied having worked in Australia and having made false claims in her protection visa application, and also showed no remorse. In Ms Ganura's case, she answered all Mr Heath's questions truthfully at the interview on 10 September 2001, did not persist with the deception and has shown her remorse for the false claims.
28. With regard to the matters referred to in Direction No 21, Mr Fergus said the Applicant concedes that Ms Ganura's making of false statements is a serious offence. However, she appreciates the importance of being frank and honest and there is no real chance of recidivism. With regard to the expectations of the Australian community, Mr Fergus contended that the community would give considerable weight to Mr Foley's health and future happiness and, in particular, to the lack of appropriate medical facilities if he were to live with Ms Ganura in the Philippines and if his health was not regularly monitored. The Respondent has conceded that Mr Foley's and Ms Ganura's relationship is a genuine one.
29. Mr Fergus said Mr Foley has no assets to speak of and lives in a rented house. He is reliant for income on his Newstart Mature Age Allowance which ceases to be payable if he goes overseas for more than six months.
Respondent
30. Ms Warner, for the Respondent, contended that Mr Foley had been involved to some degree in his wife's deception in so far as he allowed his wife's appeal to the RRT to continue even though he said he and his wife wanted to withdraw the application. They were content to rely on the assurances of his wife's solicitor that all would be OK. Ms Warner also contended that Mr Foley sought to conceal the fact of his wife's false statements when being interviewed by Mr Heath.
31. Ms Warner said the Respondent concedes that Ms Ganura told Mr Heath about the false claims in her protection visa application but says that she was attempting to put a particular gloss on her reasons, suggesting that she relied on the solicitor's advice. Moreover, Ms Warner said Ms Ganura's story of her wish to extend her stay in Australia by only a few months is implausible given the amount of money she was prepared to pay to the solicitor. The Respondent contends that Ms Ganura's remorse is partial only.
32. Ms Warner said the Respondent accepts that Mr Foley and Ms Ganura have a genuine marital relationship and concedes potential hardship to Mr Foley if Ms Ganura is not granted a visa and that his going to live in Ms Ganura's home town in the Philippines would pose a considerable risk to his health because of the lack of availability of medical services. However, the Respondent contends that Ms Ganura's misconduct must be regarded as very serious and should be given primary weight. The Australian community would not expect that she be granted a visa.
Application of the Law and Findings
33. As the Applicant concedes that Ms Ganura does not pass the character test by reason of the false claims in her protection visa application, the Tribunal can proceed to consider whether to exercise the residual discretion under s 501(1) of the Act to not refuse the grant of a visa to Ms Ganura.
34. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. 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.
35. With regard to the protection of the Australian community, paragraph 2.4 states:
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...
Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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).
Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
36. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".
37. Before any further consideration, it is appropriate that the Tribunal sets out its findings. The Tribunal finds that after arriving in Australia on 7 October 1997, Ms Ganura consulted a solicitor and migration agent, Virginia Odtojan, then of Suite 5, Level 1, 144 Marsden Street, Parramatta 2150, Migration Agent Registration Number 68203, about extending her visa. Ms Odtojan advised her to submit a protection visa application. The Tribunal accepts that, as Ms Ganura told the Senior Migration Officer at the Australian Embassy in Manilla, Geoff Heath on 10 September 2001 (R2), while Ms Ganura filled out most of the protection visa application, Ms Odtojan or a member of her staff completed the part of the form setting out Ms Ganura's reasons for claiming to be a refugee which were false. After this had been done, Ms Ganura signed the form. The Tribunal accepts Ms Ganura's evidence that she was reassured that she could withdraw the application later. Ms Ganura was aware that what she was permitting to happen on her behalf was wrong but, with the agent's reassurance, she allowed it to continue. She has expressed her remorse for so doing.
38. The Tribunal finds that after Mr Foley became aware of Ms Ganura's false protection visa claims and after he and Ms Ganura had discussed the matter, they went to see Ms Odtojan with a view to withdrawing the application. However, Ms Odtojan persuaded them not to do so on the basis that it was too late and her reassurance that everything would be "alright". Nevertheless, Mr Foley and Ms Ganura sought other legal advice - but it is not clear whether they informed the person consulted of the false protection visa claims.
39. The Tribunal found Mr Foley to be a credible witness and an honest and straightforward man. The Tribunal does not consider that the transcript of the interview with Mr Heath (R1) indicates that he attempted to conceal his wife's false protection visa claims. Rather, the transcript evidences his confusion. The Tribunal notes that Ms Ganura gave a full account of what had happened to Mr Heath (R2). The Tribunal accepts that she genuinely regrets the false claims. It is clear that neither she nor Mr Foley knew anything about immigration law at the relevant time.
40. Ms Ganura returned to the Philippines on 7 July 1999. She did not work illegally in Australia and she was never without a valid visa. Ms Ganura is now living in her home town of Cantilan on the north east coast of the island of Mindanao. This a town with a population of approximately 25,000. There is no dispute that the town has only limited medical facilities (A5).
41. Mr Foley suffered a stroke for the treatment of which he was admitted to Concord Hospital on 3 July 2002. He was transferred to Balmain Hospital on 11 July 2002 and was discharged home on 22 July 2002 (A7). Mr Foley also suffers from other medical conditions including atrial fibrillation. He has regained reasonable mobility with the assistance of a walking stick since his stroke and is independent in the activities of daily living, although the Tribunal accepts his evidence and that of his cardiologist, Dr Michael Swinburn (A2), that he has still not regained all sensation in his left side, particularly in his left hand.
42. Amongst the medication taken by Mr Foley is Warfarin, the effect of which must be monitored through regular blood tests. He also takes an antiarrhythmic medication - Solatol - for the atrial fibrillation. The Tribunal finds, and there is no dispute, that for Mr Foley to live in the Philippines could pose risks to his health due to the lack of availability of medical services.
43. Mr Foley's first wife died in 1993 following a long illness. He had two children by that marriage, one of whom, his son Patrick, with whom Mr Foley had a close relationship, died on 9 May 2003 of acute myeloid leukaemia at the age of 38. Mr Foley's daughter, Bernadette and her partner also live in Sydney and maintain regular contact with Mr Foley.
44. Ms Ganura's family live in Cantilan. She has three children, two of them adult. Her youngest child, Pilarsita, is now aged 13. The Applicant has tendered a number of references which attest to Ms Ganura's good character including from her family doctor in Cantilan (A18), her parish priest (A19) and the Mayor of Cantilan (A20).
45. Turning to the first of the primary considerations to which the Tribunal is referred by Direction No 21, the protection of the Australian community, the Applicant concedes that the making of false and misleading statements in Ms Ganura's protection visa application is a serious offence. The Tribunal notes that the false statement was composed by a solicitor and migration agent upon whose advice Ms Ganura relied. Nevertheless, Ms Ganura accepts responsibility for her misconduct and has expressed her regret and remorse. In the Tribunal's opinion, there is very little likelihood that such misconduct will be repeated and Ms Ganura poses no risk to the Australian community. While the Tribunal recognises that the refusal of a visa in the case of immigration misconduct has a deterrent effect on others who may be contemplating similar misconduct, this in itself is not a conclusive factor.
46. Turning to the second of the primary considerations to which the Tribunal is referred by Direction No 21, the expectations of the Australian community, in the Tribunal's opinion, the Australian community would take a humane view of Ms Ganura's and Mr Foley's situation (Re Leha and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1054) and would not refuse the grant of a visa given the other compassionate considerations in this case. In particular, the Tribunal notes that apart from Mr Foley's visits to the Philippines, he and Ms Ganura have been separated for four years. During that separation, he has suffered a debilitating stroke and his son has died of leukaemia. He needs regular ongoing medical treatment for his condition and would be putting himself at risk if he were to live with Ms Ganura in Cantilan because of the lack of medical facilities there. The Tribunal notes that Mr Foley is reliant on Social Security benefits for his income, is living in rented accommodation and has no significant assets.
47. The Tribunal has no doubt as to Mr Foley's honesty and considers Ms Ganura's false protection visa claims were a foolish mistake for which she is very remorseful, made on the advice of a migration agent and solicitor, and not otherwise reflective of her character.
48. With regard to the third primary consideration, the Best Interests of the Child, the Applicant did not contend that the interests of any child were a primary consideration.
49. Weighing up the primary and other considerations, in the Tribunal's opinion, Ms Ganura poses no risk to the Australian community and the Australian community would take a humane view of her situation and that of Mr Foley and would not seek to exclude her from the grant of a visa. The Tribunal therefore considers that this is an appropriate case in which the discretion under s 501(1) of the Act should be exercised so as not to refuse the grant of a visa to Ms Ganura.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
Associate
Date/s of Hearing 22 and 23 July 2003
Date of Decision 23 July 2003
Solicitor for the Applicant Mr P Fergus
Solicitor for the Respondent Ms E Warner
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