An and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 785
•12 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 785
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1167
GENERAL ADMINISTRATIVE DIVISION ) Re LI MING AN Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis QC, Deputy President Date12 August 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] RNJ Purvis QC
Deputy President
CATCHWORDS
IMMIGRATION - spouse visa - character test – Visa Applicant worked illegally in Australia – application for subclass section 309 visa refused – Visa Applicant did not abide with conditions attached to visa – Visa Applicant provided false and misleading information – Visa Applicant lied at interview about appeals – Visa Applicant provided false and misleading information and repeatedly lied at interview about her political and unionist activities – no exercise of discretion in favour of Visa Applicant
LEGISLATION
Migration Act 1958 sections 234, 501
Ministerial Direction 21
CASE LAW
Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244;
Re Lachmaiya and Department of Immigration and Ethnic Affairs (AAT 9295, 8 February 1994).
Irvine v Minister of State for Immigration, Local Government and Ethnic (1996) 64 FCR 422
Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321
REASONS FOR DECISION
12 August 2003 The Hon R N J Purvis QC, Deputy President the application
1. The application, the subject of these proceedings is one made by Mr Li Ming An ("the Applicant") seeking review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") on 25 June 2002 refusing to grant to Ying Ding Quan ("the Visa Applicant") her application for migration to Australia by a partner (subclass section 309 visa).
2. In the reasons for the refusal decision it was inter alia stated with reference to the Visa Applicant that:
· there are concerns about how Ms Quan obtained her first visa to travel to Australia;
· she did not abide with the conditions attached to the visa;
· Ms Quan knowingly worked illegally in Australia from at least May 1996 until 25 October 1996 and from 29 September 1999 to her departure on 5 March 2001, just over 22 months;
· she provided false and misleading information at interview about working illegally in Australia;
· she initially stated that she never worked illegally in Australia but later admitted that she in fact did work illegally and she knew that she was doing so;
· she provided false and misleading information when she lodged an application onshore for a subclass 686 Tourist (long stay) Visa;
· she lodged a Protection Visa application containing claims made with the intention to prolong her stay in Australia;
· she pursued the Protection Visa based on these claims right through to review by Refugee Review Tribunal and then sought Ministerial intervention;
· she lied at interview about her appeals against the Department's initial decision to refuse her the Protection Visa;
· she provided false and misleading information about her life in China before travelling to Australia;
· she provided false and misleading information in Australia and repeatedly lied at interview about her political and unionist activities in Australia;
· she stated at interview that she knew she was illegally in Australia from 29 September 1999 to her departure on 5 March 2001, a total of 17 months
and further:
· the Applicant's course of conduct in relation to the Department indicates a disregard for the laws of Australia, in particular in relation to the Department. Given her general conduct over this period, conduct she has never expressed regret for, I question her commitment to obeying the laws of Australia should she be granted a visa;
· Ms Quan has repeatedly made false and misleading statements to the Department and she perpetuated those claims over a lengthy period of time. These are offences under the Migration Act 1958 and the Commonwealth Crimes Act for which he (sic) could be prosecuted were she in Australia;
· Ms Quan has committed these offences over a period of over five years indicating a consistent recidivist course of conduct and not an isolated incident;
· Ms Quan has been dishonest in relation to the Department and demonstrated a consistent course of conduct of a fraudulent nature over a five-year period. She has never expressed any regret for these actions. I find as a result that the risk of recidivism is significant. By her actions she has displayed a disregard for Australia’s laws and this behaviour could manifest itself in other parts of daily living in Australia;
· Ms Quan's actions were deceitful. Her actions would be unacceptable to the Australian community;
· I find that the level and duration of Ms Quan's unacceptable behaviour is not outweighed by her relationship with her sponsor;
· the Applicant has for a lengthy period consistently dealt untruthfully with the Department in a system that requires and in fact depends on a person to be open and honest so that a proper assessment may be made.
the hearing
3. At the hearing of the present application the Applicant was represented by Mr Harry Huang, Migration Agent of Pricilla International Co Pty Limited and the Respondent by Mr Murray Allatt, a solicitor employed by the Australian Government Solicitor.
4. There was introduced into evidence the documents lodged on behalf of the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1 - T17. The following written materials were tendered as exhibits and marked accordingly:
Exhibit No
Description
Date
A
Seven pages of photographs
B
Digiplus Telephone service summary
C
Copies of envelopes
D
Shanghai Public Security Bureau registration forms of temporary residency Applicant and Visa Applicant and passport copy
Various dates
E
Copies of airline tickets
F
Medical certificate by Dr Bernard Tse of Associated Medical Centre
12 February 2003
G
Declarations of Guo Ming An and Guo Qin An
19 March 2003
H
Statement Quan Yonghao
25 February 2003
I
Statutory Declaration Li Zuo
15 April 2003
J
Copy of Li Zuo passport
1
Application and letter to Refugee Review Tribunal
27 June 1997
2
Bundle of documents re protection visa Ying Di Quan
5. The Applicant, the Visa Applicant and a Dr Warwick Eather gave oral evidence, the Visa Applicant and Dr Eather by telephone linkage with each of them in China.
the issues
6. The issues for determination in these proceedings are:
1) Does the Visa Applicant pass the Character Test under section 501(1) of the Migration Act 1958 ("the Act"), that is, is she by reason of her past and present general conduct a person who is not of good character.
2) If the Visa Applicant does not pass the Character Test:
(a) should the decision of the Minister's delegate be affirmed by an exercise of the residual discretion under section 501(1) of the Act against the Visa Applicant; or
(b) should the decision of the Minister's delegate be set aside by the exercise of a residual discretion in favour of the Visa Applicant.
legislative provision and ministerial direction
7. Section 234(1) of the Act provides:
"234 False Papers etc.
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both."
8. The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.
9. By section 501(1) of the Act the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.
"501 Refusal or cancellation of visa on character grounds
…
(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; or
…"
10. The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 324 it was said:
"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard 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."
11. As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs. [AAT 9295, 8 February 1994)
12. A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.
13. Direction 21 as here relevant provides:
"PART 1 - APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.
1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ...
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …
1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).
…
Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
…
Subparagraph 501 (6)(c)(ii) - past and present general conduct
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:
…
(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;
…
PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, 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.
Primary Considerations
2.3 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.
Protection of the Australian Community
….
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)
a. The seriousness and nature of the conduct
2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:
…
(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
…
c. general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …
The best interests of the child
2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian 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); …"
chronology of relevant events
1958 May 5 Visa Applicant born in Jilin, China
1959 January 3 Applicant born in Shanghai, China
1981 October 13 Son born to Visa Applicant in China
1983 March 15 Visa Applicant divorced in China
1987 February 19 Applicant divorced in China
1989 December 2 Applicant arrives in Australia
1996 April 27 Visa Applicant arrives in Australia
1996 MayVisa Applicant and Applicant meet whilst working in factory
1996 July 22 Visa Applicant granted Tourist long stay visa
1996 October 25 Visa Applicant lodges claim for Protection visa, granted Bridging Visa until 22 December 1998
1997 June 6 Visa Applicant refused Protection visa
1997 June 30 Visa Applicant seeks review of Protection Visa decision
1997 August 1 Visa Applicant & Applicant commence living together
1998 October 26 Visa Applicant invited to give oral evidence before Refugee Review Tribunal
1998 November 17 Refuge Review Tribunal decision rejecting Protection visa application
Visa Applicant lodges request for Ministerial intervention
1999 December 13 Visa Applicant obtains custody of her son
2000 September 3 Visa Applicant and Applicant marry
2001 February 2 Visa Applicant and Applicant complete application for migration to Australia by a partner
2001 March 5 Visa Applicant departs Australia
2001 March 6 Visa Applicant lodges application for migration
2001 November 27 Notice of intention to refuse visa given to Visa Applicant
2002 March 20 Interview with Visa Applicant in Shanghai, China
2002 April 8 Applicant travels to China, returning 3 June 2002
2002 June 25 Minister's delegate rejects Visa Applicant's application to migrate
2002 August 13 Applicant lodges application for review with Administrative Appeals Tribunal
2003 March 30 Applicant travels to China
the factual situation
14. So far as it is relevant to this application the factual situation as found by the Tribunal on the basis of the material tendered before it is as set forth in the above chronology and as follows.
15. The Applicant came to Australia as an English language student in 1989 shortly after the Tien An Minh Square massacre in Beijing. He did not pursue his studies for more than six months, this on account he said of the cost. He subsequently made claim to be a refugee. He was not successful. In due course he was granted an amnesty enabling him to remain in Australia. He obtained employment as a sewing machinist and has worked at this occupation to the present date.
16. The Applicant met the Visa Applicant very soon after she entered Australia in April 1996. She was introduced to him at his place of employment. As she puts it in a document addressed to the Australian embassy in Beijing written under date 2 February 2001 in support of the Visa Applicant's application for migration:
"Both An Lie Ming and I first met each other in May 1996 when we worked together at the same company in Australia. At that time, both of us were in difficult situation but we helped each other and encouraged each other… We finally moved together and started our de facto relationship from 1 August 1997…"
17. The relationship between the Applicant and the Visa Applicant developed and by August 1997 they were as above mentioned living together as well as both working for the same employer Ms Li Zuo of Zuo Brothers Trading Pty Limited. (Exhibit I) Indeed it was a friend of the Visa Applicant who had in May 1996 brought her to the factory in order according to the Applicant that she "could learn about making of clothes" on an electric machine in place of the pedal machine she had used in China.
18. The Applicant says that he did not ask the Visa Applicant about nor did they discuss her activities in China or why she came to Australia until after they started living together. She then told him of her involvement in "unionism" of the "local government wanting to arrest her" and "she becoming scared, could not remain in China, so she left". She also then told him, so he says, about her purpose in coming to Australia. Yet during a period of 14 months from first meeting to their commencing to live together the Applicant says there was no discussion about her interest in union activity in Australia, the making of a protection visa application, her appeal to the Refugee Review Tribunal and its refusal or her visa extension.
19. The evidence of the Applicant in this regard is not indicative of a close intimate relationship developing let alone existing over this period between the parties. The only explanation offered by the Applicant for this secrecy was "her concern of my health". The Tribunal does not accept this evidence as being truthful. Otherwise it reveals a degree of naivety inconsistent with the Applicant's character as revealed by him when giving evidence.
20. The Applicant was aware of the migration status of the Visa Applicant at least from August 1997 and more likely from an earlier date.
21. The Visa Applicant says that she came to Australia "to escape from persecution by Chinese government at the time". A friend arranged for her to obtain a passport and a visa the nature of which she was unaware. She says she did not sign any documents.
22. In the course of her evidence before the Tribunal the Visa Applicant identified the "friend" by a name different to that which she had given to an officer of the Respondent, Dr Eather, who interviewed her in Shanghai. She further said in her evidence that she did not know "what sort of visa I got", she "did not know how long it was valid as it was in English, which I could not read". The record of her interview with the officer in Shanghai however reads as follows:
"42. What visa did you apply for? Visitor.
43. What were the conditions attached to that visa? I know.
44. What were the conditions? The visa was valid for 3 months. After I arrived in Australia I could extend the visa for another 3 months.
45. Your visa had restrictions, what were the restrictions? I was not allowed to work. I had no access to social security benefits.
46. You knew you were not allowed to work when you arrived? Yes I knew.
47. When did you exactly start to work? In October 1997."
23. The Visa Applicant said in her evidence that she did not plan how long she was going to remain in Australia, "I just wanted to look around" she said. Her stay was only to be temporary but she "wanted to be sure it was safe before returning” to China. This evidence is hardly consistant with her conduct in applying for a protection visa, appealing to the Refugee Review Tribunal and applying to the Minister let alone investigating or studying the structure and operation of unions in Australia.
24. There can be little doubt that the Visa Applicant did engage in anti- government activities in China but it is not possible on the evidence to gauge the nature or extent of such activity. The Refugee Review Tribunal certainly did not accept it as sufficient to warrant the grant of a protection visa. In the absence of objective corroboration the Tribunal has difficulty in accepting the Visa Applicant as a truthful witness.
25. In her evidence the Visa Applicant criticised the interviewing officer alleging that he was "cruel", "rude", "treated me as a criminal", "the interview was oppressive". She took issue with a number of the answers said by the officer to have been given by her. She admitted however, making "mistakes" which she said she "could not change as this would reflect badly against me". She was unable to provide any details as to union contacts she made or to whom in China she may have transmitted material.
26. In the Applicant's Amended Statement of Facts and Contentions paragraph 22 it is maintained:
"…The Delegate of Minister, who conducted the interview with the visa applicant in Shanghai, treated her as a 'criminal' with very rude attitude, and tried every means to force her to 'admit' that she had provided false and misleading information in her PV application. In other words, it is not the visa applicant to mislead the DIMIA, but it is that DIMIA officer himself tried to mislead the visa applicant at the interview."
27. No one of the matters raised by the Visa Applicant was put to Dr Eather, the interviewing officer, in the course of his cross-examination by the representative of the Applicant nor was he questioned as to the manner in which the interview was conducted. The Tribunal has already indicated the reservations it holds as to the credibility of the Visa Applicant. In the absence of any relevant questions being put to the officer and he having no reason to do other than record accurately the questions asked and answers given, the Tribunal accepts his evidence in preference to that of the Visa Applicant where they are in conflict with one another.
relationship between the applicants and other considerations
28. On the basis of the evidence the Tribunal accepts that there exists a genuine matrimonial relationship between the Applicants. They are in constant contact with each other by telephone and mail, the Applicant having recently travelled to China on two occasions. He regularly contributes to her living expenses.
29. Even though the parties do have their immediate families living in China, hardship would be experienced by each of them to varying degrees if they remained living apart. The Applicant could return to China. He has retained his citizenship. He says that at his age of 44 years it would be difficult to obtain employment even be it he is employed in a demand occupation as a machinist. The Visa Applicant is also a sewing machinist.
30. There is not any evidence of the Applicant having made for himself a significant social, family or business life in Australia. He does say, “having lived here for nearly 14 years" that he "has got used to it", that in China medical expenses are high whilst in Australia he can use Medicare.
31. If the Visa Applicant should be allowed to live in Australia according to them they plan to "have children" and buy their "own house" even be it the Applicant's health is said to be "not so good".
health of the review applicant
32. The Applicant says that his "health is not good", he "has high blood pressure" and does "not sleep". Indeed he contends that the Visa Applicant remained in Australia, be it illegally, "as she had to look after me".
33. However the only medical evidence before the Tribunal is a certificate referable to an abdominal operation performed upon the Applicant in July 2002 and the restriction imposed on him as to lifting heavy weights.
relevant family of the applicants
34. All members of the Applicant's family, his parents and two older sisters as well as his wife are living in China.
35. The Visa Applicant has her son, a younger brother and other members of her immediate family also living in China.
submissions and decision
as to character
36. It was maintained on behalf of the Applicant, that after considering all aspects regarding the Visa Applicant the Tribunal "should believe that” she “can pass the character test".
37. However, the Tribunal is not satisfied that it should so find. It is clear on the evidence before it, that the Visa Applicant made application for a tourist visa with the clear intent of coming to Australia and obtaining employment in this country, this in breach of the condition on which it was issued. She later obtained a further visa and again acted in breach of the condition of no work. She lodged a protection visa application and maintained her position on appeal to the Refugee Review Tribunal and application for Ministerial intervention on grounds, which were not sustainable. Further, in her interview with an officer of the Respondent in Shanghai, she not only maintained the inaccuracies earlier mentioned but sought to then create a position contrary to her earlier representations.. During the course of the present application and the giving of her evidence before the Tribunal she made allegations against the Respondent's officer as did her representative, which were not only not sought to be established by cross-examination but which were of such a nature as to reflect adversely upon the character of the Visa Applicant. To make allegations the like of those stated by the Visa Applicant and her representative and then not seek to give the person against whom they were made the opportunity of confirming or negating the same is indicative of an unwillingness or lack of preparedness to maintain the allegations and hence a lack of truthfulness on the part of the person making the same.
38. The Tribunal is satisfied that the Visa Applicant acted in breach of the Immigration Law, made false and misleading statements in connection with her application for the grant of a visa and more recently was untruthful in her interview and sought to cast aspersions without justification upon her interviewer..
39. The Visa Applicant sought to maintain the representations made by her as to her activities in China and in Australia but was unable or unwilling to provide any details acceptable to the Tribunal in relation to them.
40. The Tribunal, as earlier indicated, also has difficulty accepting the evidence of the Applicant as to his being unaware of the nature of the Visa Applicant's activities prior to August 1997. He was also a party to the Visa Applicant remaining in Australia without a valid visa and of her engaging in employment. The Tribunal is also satisfied that the Applicant was in all probability more conversant with the Visa Applicant's activities both in China and in Australia than he was prepared to disclose to the Tribunal.
41. The Tribunal is satisfied that the Visa Applicant is not of good character within the meaning of the Act.
discretion
42. Even be it the Tribunal is not satisfied as to the Visa Applicant satisfying the character test it is open to it to exercise it’s discretion in favour of the Visa Applicant if the primary and other considerations that it is required to assess are such as to warrant the discretion being so exercised. Earlier in these reasons the various matters that are so required to be taken into consideration have been detailed. They relate to the protection of the Australian community, the seriousness of the conduct of the Visa Applicant and the deterrent effect of a refusal to grant a visa. The expectations of the Australian community, having in mind all of the relevant facts are to be noted and due weight given to them. There is not a relevant child in the present application. As well as the primary considerations just mentioned, the Tribunal is also to consider the relevant relationships such as that existing between the Applicant and the Visa Applicant and the effect that any adverse decision might have upon other persons.
43. It was said on behalf of the Applicant that the parties came from a different cultural background to that existing in Australia namely one where fear of government is omnipresent. Thus when the Visa Applicant was interviewed it was understandable that she should be in fear and be "scared" of any consequence.
44. The Tribunal is aware and takes notice of cultural differences and accepts that a degree of adjustment may well be necessary when a person moves from one background to another. However, this is not the position, which emerges in this application. The conduct of the Visa Applicant as identified by the decision-maker and as found by the Tribunal is of a serious nature and is such as to attract adverse findings. The conduct is such as to warrant attention being drawn to it and this in the context of visa applications.
45. The Australian community would not expect the Visa Applicant having in mind her conduct and activities maintained even up until her interview in Shanghai and the giving of her evidence before the Tribunal, as being other than such as to preclude a visa being granted to her. The Tribunal accepts the genuineness of the relationship between the Applicant and the Visa Applicant but must take the other factors into account in arriving at a final decision.
46. The Minister's direction underscores the need for a decision-maker to consider as very seriousness conduct the like of that engaged in by the Visa Applicant. The making of false and misleading statements in connection with entry or stay in Australia is considered by the government to be very serious. Where false and misleading statements are made with the express intention of obtaining a benefit namely the grant of a tourist visa, a protection visa, Ministerial intervention and statements at interview for a spouse visa, then these are to be viewed as adverse factors. The Tribunal is satisfied that if the decision under review is affirmed that this would act as a deterrent for others who might have thought to use similar stratagems. The Tribunal is also satisfied that the Visa Applicant may well again engage in conduct such as falsely declaring matters if it be advantageous to her.
47. The procedures required of applicants for a visa necessitate an applicant providing information, which will aid in an assessment of eligibility. It is necessary in order for an appropriate decision to be made for such information to be as accurate as possible. The Australian community expects people who seek to obtain a visa for residence in Australia to maintain this degree of honesty in providing factual information. The integrity of the system demands that this be so. Where it can be shown, as it has in the present case, that an applicant has deliberately sought to create a false situation, has made false representations and seeks to maintain such falsity, the community would not expect a visa to be granted.
48. The Tribunal accepts that if a visa not be granted the Applicant will suffer a degree of hardship. It may well be that he will then return to China and rejoin his family. The hardship that might well be experienced by the Applicant is, however, to be noted in the context of his knowing, at least at the time of his marriage the situation in which the Visa Applicant then found herself, being in Australia without a valid visa and having engaged in employment in breach of the conditions imposed on her earlier visas. He was also aware of the basis upon which she had made her unsuccessful protection visa application.
49. For the reasons set forth above the Tribunal is satisfied that the correct decision in this matter is to affirm the decision under review.
50. The decision under review is affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. Mr R N J Purvis QC, Deputy President
Signed: A. Krilis
AssociateDate/s of Hearing 1 and 2 May 2003, 28 July 2003
Date of Decision 12 August 2003
Representative for the Applicant Mr Harry Huang
Solicitor for the Respondent Mr M Allatt
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