Au and Minister for Immigration and Citizenship
[2008] AATA 28
•11 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 28
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0998
GENERAL ADMINISTRATIVE DIVISION )
Re Kwan Wun AU
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date11 January 2008
PlaceSydney
DecisionThe decision under review is set aside and the matter remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of granting a visa to the visa applicant.
..................[sgd]............................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – visa applicant committed several breaches of Australian immigration laws – fails character test – community protection considerations weigh against the grant of a visa – community expectations offset by review applicant’s need for physical and emotional care – marriage found to be genuine – review applicant and family likely to suffer severe hardship if visa is refused – exceptional circumstances of this case allow primary consideration of community protection to be outweighed by other consideratons – decision under review is set aside.
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RELEVANT ACT/S:
Migration Act 1958 ss 417, 499(1), 499(2), 499(2A), 501(1), 501(6), 501(6)(c)(ii)
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Re Grech and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 22
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Scorgie and Minister for Immigration and Citizenship [2007] AATA 1654
Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046
Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474
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OTHER REFERENCES
Direction No 21
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REASONS FOR DECISION
11 January 2008
Professor GD Walker, Deputy President
Basic facts
1. The visa applicant Mr Chang Xiong Lin was born on 22 September 1976 in the People’s Republic of China (PRC) and is a citizen of that country. He is now aged 31. Mr Lin arrived in Australia on 31 January 1996 on a bogus Taiwanese passport and business (short stay) visa in the false name of Shan Dou Wu and provided false information on his incoming passenger card.
2. He applied for a protection visa under the false name of Wu on the basis of grounds that were entirely fabricated. He blames his then migration agent for his false refugee claims (T pp17, 164).
3. The visa applicant then pursued those false claims to the Refugee Review Tribunal (RRT). The RRT upheld the department’s decision on 4 August 1998. The visa applicant did not take up the RRT’s suggestion that he give oral evidence at the hearing.
4. He then unsuccessfully sought ministerial intervention under s 417 of the Migration Act 1958 (Cth) (the Act). In his statement of facts and contentions (Exhibit A1), the visa applicant denies having sought ministerial intervention, but he admitted the allegation in his written statement (Exhibit A2) which he adopted on affirmation at the hearing.
5. The visa applicant stayed unlawfully in Australia for approximately seven years and five months, between 8 September 1998 and 16 February 2006. At the hearing he admitted that at no time during his 10 years in Australia did he have permission to work, but that he had worked nevertheless from about three months after his arrival. He also admitted at the hearing that at no time during his stay did he pay any income tax.
6. In March 2003 he met the applicant, Ms Kwan Wun (Amanda) Au, born 16 March 1978, when he became a resident in shared accommodation with her. They began a de facto relationship in May 2005 and were married on 18 January 2006. Ms Au is an Australian citizen.
7. In January 2006, Mr Lin approached the respondent and was granted a bridging visa E valid until he left Australia for China on 18 February 2006. On 21 February 2006, he lodged an application for a combined partner (provisional subclass 309) partner (migrant subclass 100) visa on the basis of his marriage to Ms Au.
8. On 29 January 2007, a delegate of the minister decided to refuse the grant of a visa to the visa applicant on the basis of s 501 of the Act. The applicant applied to this tribunal for review of that decision on 28 March 2007.
9. At the hearing, the applicant was represented by Mr Ray Turner, solicitor of Parish Patience, immigration lawyers, while the respondent was represented by Ms Therese Quinn, solicitor or DLA Phillips Fox. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person and the visa applicant gave evidence by telephone from China. Mandarin and Cantonese interpreters translated for the applicant and the visa applicant respectively.
Issues
10. The issues in this case are:
(i)Whether the visa applicant passes the character test as stated in s 501(6)(c)(ii); and if not,
(ii)Whether the tribunal should exercise its discretion under s 501(1) so as to set aside or affirm the decision under review.
Relevant Law and Policy
11. Under s 501(1) of the Act, the minister may refuse a visa if the applicant 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 is met. The relevant ground in the current matter is set out in paragraphs (c), as follows:
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(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; …
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12. Under s 499(1) of the Act, the Minister may give written 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. That includes this 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”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
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.
The visa applicant’s evidence
14. At the hearing Mr Lin adopted his written statement (Exhibit A2). In it he admitted the adverse conduct as found by the delegate (T pp26-27) and expressed regret for it. He also admitted that he did not pay income tax while he was in Australia, explaining that as his visa did not allow him to work, he could not obtain a tax file number.
15. Detailing how he used to help his wife while he was in Australia, he said he took her to hospitals and medical appointments and took her for drives to provide diversion. As she has walking difficulties and can only move slowly, he had to support her when they were going out. When her knees would occasionally cramp or dislocate at night, he massaged them for her. When she forgot to take her medicine, she risked an epileptic seizure and if he were not with her, it would be dangerous for her. He endeavoured to build up her confidence and make her discard her earlier feelings of inferiority, and now she is much happier than before.
16. Formerly, she used to miss medical appointments because of her lack of mobility. He also helped her to buy her medicines.
17. Without him, it is very difficult for her to take care of herself on her own. Because of her health problems, she cannot find employment and must rely on social welfare benefits. She is under financial pressure and has difficulty paying all her bills. All those problems can be solved, he believes, if they can be reunited. Mr Lin said that in the 10 years he lived in Australia, he did not engage in any criminal activities. He should be allowed to return because his wife needs him to take care of her. It would not be practicable for them to live together in China. When she visited him in his home town, she found it primitive and isolated. The available medical facilities are “nearly obsolete” and she worried about her health difficulties. She could not obtain adequate medical care in China and therefore could not live there for an extended period. She also could not communicate with his parents, because they speak a different language. In addition, his own income is insufficient to meet his wife’s living and medical expenses.
18. After he left her in Australia, his wife became unstable and over-emotional, indeed hysterical. He worries that her health and financial pressures will bring about a total collapse and possibly serious medical consequences, including stroke. Her diseases are chronic and require his long-term care. If he could return to Australia, he could find employment as a renovation technician and financially help her, reducing her reliance on government benefits.
19. He believes he is a skilled worker of a kind that Australia needs and says he will be a good citizen and taxpayer.
20. In his oral evidence, he said he had not applied for a PRC passport in his real name because it was very difficult to obtain one in his local area. He had applied to the local police for a passport, attending their offices once, but without result. The police gave no reason for not issuing a passport to him. About two months before he came to Australia, he decided to purchase a false passport, which he received about a month later.
21. Asked if the false passport already had the visa in it, he replied that he was not quite sure. When then asked if he applied for an Australian visa, he said he did not know, and that other people had done it. He had not planned to depart after the expiration of his one-month Australian visa. During the 10 years he remained in Australia, he had never held a visa in his true name until a few days before he left in 2006. He had never had permission to work but did so nevertheless, in order to provide financially for his family.
22. About three or four months after meeting his wife in March 2003, he told her that he had used the name Wu and had applied in that name for a visa. When he told her, she was surprised and disbelieving, and then asked him to try to find some way to stay in Australia. At that time they did not seek any advice from a lawyer or a migration agent.
23. He is currently living with his parents in the Fujian village where he has lived all his life, except when he was in Australia. One of his sisters lives about 10 minutes away in another village. The nearest city is Fuzhou, some 60 kilometres away.
24. His village is home to some 2,000 or 3,000 people. He works in a construction company for very low wages, on jobs located in a radius of about a 20-minute drive from the village. He could not work in the city, as he would be unable to find employment there. When his wife visited him at his home village, she considered it backward, especially as regards medical services.
25. He came to Australia in 1996 because it is free and because he hoped to earn money to support his family in China. He had never planned to depart after a month as required by his visa but had not planned how long he would actually stay. He had applied for his protection visa a month after arriving. He saw a migration agent who told him he had to apply for a protection visa if he wanted to remain. He had known that the agent was making a claim for refugee status and realised at the time that he was not qualified for it. At first his motive for remaining was to earn money, but later Australian civilisation and culture had changed him, and he wanted to stay because he appreciated them.
26. He seemed reluctant to say whether he had ever feared persecution, but claimed that he thought he could be punished in China because he had used a false name to leave the country. Asked if he had thought that before leaving for Australia, he replied that he was not sure and asked Ms Quinn what her point was.
27. He had obtained a PRC travel document in his own name six months before leaving, having used his old PRC identification to apply for it.
28. He had worked the whole time he was in Australia whenever work was available, under the name Wu. He had also leased the apartment where he lived with Ms Au under the name Wu and had obtained a driver’s license and opened a bank account in that name. He said he did not know whether he could have obtained a PRC travel document in his true name at any time. He had wanted to apply to marry in his own name because he did not wish to cheat or lie to his wife.
29. He had worked in the construction industry while he was in Australia, earning between $600 and $700 per week and sending more than half of it back to China to his family. He had not paid any income tax on his wages and apologised for that fact.
30. His relationship with Ms Au had developed a romantic turn some nine months to a year after they first met. About two years after that he moved in with her. She had known for the whole of that time that he was in Australia illegally, as he had never lied to her about it from the beginning. He had moved in with her after they moved out of the house where they had been sharing accommodation in April 2005 and they decided to marry in December 2005.
Observations on the visa applicant’s evidence
31. At the hearing the visa applicant tended to be evasive when asked the most pertinent questions, such as whether he had applied for the bogus visa on which he entered Australia and whether he had feared persecution if he were to return to China.
32. There were also a number of inconsistencies in his evidence:
(a)In his letter to the department of 27 August 2006 (T p206), he wrote that, “Because of the political reason, I did not have my own passport in China”. At the hearing, however, he said the local police did not give a reason for not issuing him with a passport.
(b)At his interview on 7 July 2006, he said that he did not return to China before his original bogus visa expired because he was afraid of being punished because of political reasons (T p187). In his oral evidence, however, he said he thought he would be punished for using a false name to leave China.
(c)In his letter of 27 August 2006, he wrote that Mr Chen, the man he paid to purchase a passport, also “helped me to apply for the visa and all other necessary documents” (T p206). In oral evidence, on the other hand, he said he did not know if he had applied for a visa and said that other people had done it.
33. These inconsistencies were all raised with the applicant in the course of the evidence but were not dealt with in submissions or otherwise. These prevarications and changes of story lead me to conclude that the visa applicant is not a reliable witness.
The applicant’s evidence
34. In her statement of 6 August 2007 (Exhibit A4), which she adopted at the hearing, the applicant stated that she greatly misses her husband and that without him in Australia, her daily life has been seriously affected, as he is the only person who can help her and take care of her.
35. She has many health problems, including epilepsy, learning difficulties, asthma, hypocalcaemia and hypo-parathyroidism, polycystic ovarian disease, grade 2 obesity, bilateral chronic knee pain and bilateral flat feet. When the visa applicant was in Australia he accompanied her to see doctors, attend hospitals and buy groceries and other necessities. He provided her with a sense of security.
36. Since he left Australia, she has twisted her ankle several times and now must walk very slowly, being scarcely able to walk down stairs even using a handrail. He also used to hold her hand when she crossed the road slowly, and without him she is nervous when crossing roads and walking down stairs.
37. She is particularly afraid of road conditions in China where drivers and motorcyclists travel at very high speeds and without care for pedestrians. She believes it likely that if she lived in China she would be knocked over by cars because of her walking disability and would be unable to obtain suitable medical treatment in hospital.
38. To overcome her loneliness and to fill in time (as she is unable to work), she collected many animals. She tried to take care of each one, “but they did not listen to me” and made a mess in her house. She had to let them go and felt very sad because of that.
39. She feels very lonely without her husband and has considered suicide many times. She has refrained from doing so because she knows her husband would not want her to.
40. She also has problems with her noisy and disruptive upstairs neighbour. On one occasion they threw a glass bottle through one of her windows, breaking it, and she made a formal complaint to the police. Her neighbours’ behaviour did not improve and she is very afraid of them. She wants her husband to return and protect her. Her next-door neighbour, Mr David Taylor knew of the above incident but could not help her.
41. She believes that if her husband is allowed to return she will feel a sense of security and will also be able to cease depending on social and disability benefits from Centrelink.
42. In her oral evidence she said she had learned of his false passport and other migration contraventions after she had known him for about three or four months. She had thought it strange and had been surprised, but told Mr Lin not to be scared. They decided to marry well after she had learned about his conduct and even though she knew it might make it harder for him to stay in Australia. But she had married him because he was the only person who treated her well. He takes good care of her and respects her parents.
43. As a Christian she attended Parramatta Chinese Christian Church but left because the other members called her names because of her disabilities. She then joined Hillsong Church in July or August 2007 and has made many friends there. Sometimes she attends every week, also going there for fellowship meetings about once a fortnight. She sees some of the members at other times, but they have their own work to do and are not able to take care of her. She did not think she would be able to practice as a Christian in China, believing that the Chinese dislike Christianity. She did not know if Hillsong had a branch there.
44. She was originally from Hong Kong, where she lived a long time, but from there migrated to New Zealand where she lived until about four years ago. She came to Australia with her parents and lived with them in Maroubra, moving out in about 2003.
45. After leaving home she had lived alone for at least a month. She agreed that she was able to live independently before she lived with the visa applicant, but said she had been very unhappy, and her emotions had been very unstable. No one had been able to talk to her.
46. Her relationship with her parents, which had previously been bad, improved after she moved in with Mr Lin and since then she has seen them often. She did not want to move back home, however, because she wanted to be with her husband.
47. Her brother lives with her parents but she does not see him often because of his work commitments.
48. Even if her husband were unable to obtain a visa, she would not move back with her parents because she did not previously get along well with them.
49. She is still receiving medication in relation to her convulsions but cannot recall when the last one occurred. There had been once since her husband left, however, and it caused a knee dislocation.
Psychiatric and medical evidence
50. As was mentioned above, Ms Au suffers from numerous medical conditions, including grade 2 obesity, epilepsy, a learning difficulty, asthma, hypocalcaemia, hypo-parathyroidism, polycystic ovarian disease, bilateral chronic knee pain and bilateral flat feet. Documentary evidence of those conditions is contained in Exhibit R1 (T pp203-236).
51. Dr Carlson KS Loke, a consultant psychiatrist, has prepared several reports on her condition (Exhibit A3, T pp249, 317-320). He has been treating her since early 2007 regularly for psychotherapeutic support for her anxiety and depression since the visa applicant returned to China. He has also interviewed her father for collaborative history.
52. Dr Loke considers that without her husband’s emotional support and supervision, Amanda’s behaviour and standard of life have deteriorated. Her depression and anxiety have resulted in increasing irritability and quarrelsome behaviour with friends, family and neighbours, to such a degree as to make it likely eventually to provoke violence against her. She has displayed a reckless and irresponsible approach to the management of her finances and does not budget properly but impulsively buys cosmetics and jewellery at the expense of food and other essential items. Her husband's firm supervision had kept her life on an even keel but without him she will eventually run into financial problems which will result in her losing the opportunity for living independently.
53. She does not shop appropriately for food or cook meals and her physical health is deteriorating as a result, as are her personal hygiene and household cleanliness. Her physical environment is becoming “chaotic and physically unhygienic”.
54. Her resorting to collecting pet animals to alleviate her loneliness when she lacks the ability or understanding to maintain pet hygiene or to train the animals behaviourally can result in cruelty to the animals on occasion.
55. While she was able to achieve a high level of functioning when she was living with her husband, Dr Loke expects that the continuing deterioration in Amanda will also result in a high probability of depression developing in her parents. He believes that Amanda's mental and psychological disabilities will make it impossible for her to remain in independent living unless she obtains continuous supervision and encouragement, ideally from a spouse who loves her and has her interests at heart.
56. At the hearing, Dr Loke explained that he first saw Ms Au three or four years ago when the TAFE college she was attending had difficulties with her. He had not seen her after that until July 2007. He observed that she was suffering from an intellectual disability and reactive depression. She was of borderline intelligence and her reading skills were poor. She displayed oppositional behaviour and a deep-seated sense of resentment against her parents. Her behaviour was marked by “An established pattern of primitive responses to stress and opposition in Amanda which leads to further discord with her parents” (T p318). Her mental age is that of a pre-teen, and is similar to that of a child.
57. He had made four recommendations, but she had not followed them. If implemented they would still help her condition, except that family therapy was no longer appropriate.
58. Amanda could be helped by supervision by others of a constant, consistent nature, preferably from one person.
Other evidence for the applicant
59. Mr Andy Au (Kwan Wun Au), Ms Au’s brother, is an Australian citizen and works as a project engineer to provide engineering support and to improve the reliability for Sydney's Millennium train. In his statement (Exhibit A5), he attested to the visa applicant’s good conduct in Australia, including using his home renovation skill to help an Australian citizen, Mr Ye, without charge. He has also been actively involved in various voluntary services since returning to China.
60. Amanda finds it very difficult to attend her many medical treatments by herself, especially as some of the clinics or laboratories are not close to where she lives. Since her husband’s departure in February 2006, she has therefore had to schedule her medical appointments on the dates when he (Andy Au) does not have to work, so that he can drive her there.
61. Rescheduling appointments in that way delays her treatment and is not good for her health. Further, Mr Au’s present employment requires him to work overtime or stand by for any emergencies, including after hours, and requires him to work outside Sydney, including in Europe. Consequently, there will be times when he is unable to assist Amanda immediately, and that would also cause further deterioration in her condition.
62. At the hearing, Mr Au said that before Amanda met the visa applicant and was living at home, she was very self-centred, lost her temper frequently, indulged in inappropriate eating and was constantly quarrelling. Her behaviour began to improve after she moved out of home four years ago and met the visa applicant. She became happier and more even-tempered. Mr Lin is able to control her diet so that she loses weight. He was at first somewhat like a teacher, and helped to resolve her arguments with the family. He also helped her with her medical appointments and with grocery shopping.
63. After he left she became depressed, very sensitive, quick to anger and had bad relationships with everyone, including her neighbours. Her diet deteriorated and she would not perform housework, so that her apartment was dirty, untidy and almost disgusting.
64. She keeps many pets to overcome her loneliness from his absence, but does not look after them properly and her apartment is malodorous. She also has suicidal thoughts. As she lives far from the family in Maroubra, they are not always able to help her. It is plain that she cannot live independently.
65. Mr Turner asked Mr Au in chief whether he thought that Mr Lin was exploiting his sister in order to return to Australia. He replied in the negative, saying that Mr Lin is very kind and over the past four years, he has looked after Amanda well. When they go out he helps her to walk slowly. He has been honest with the family and showed them his bogus passport. He treats her parents and Mr Au well. He arranged for wedding celebrations to be held in three different places, which showed that he was serious and proud about his marriage. He thought it impossible that Mr Lin’s professed feelings were untrue.
66. Mrs Shuk Mee Chiu, the applicant’s mother, gave written (Exhibit A6) and oral evidence to a similar effect about the visa applicant’s positive influence on the applicant and the manner in which her condition had deteriorated since he returned to China.
67. She is very concerned about the health warnings from various doctors and specialists of potential problems such as heart attack, stroke and diabetes, caused by her obesity. She believes that if her daughter becomes physically disabled, all members of her family will suffer even more. Mrs Chiu has a number of medical problems herself and cannot look after her in the way she did when she was younger.
68. In any event, when she was trying to teach her and comfort her in earlier times, Amanda always thought her mother was not standing by her but was helping others who were against her. Such situations could only be handled by Mr Lin when he was in Australia because she does listen to her husband.
69. Her health had been bad since childhood and before she met Mr Lin, she would overeat, come home very late, and cause many violent arguments. Mrs Chiu tried to teach her but she resisted supervision. When she is with Mr Lin, however, he looks after her. He purchased equipment to help her to lose weight, encouraged her to eat vegetables and she followed his diet, and was able to lose weight. Her relationship with Amanda was better and they would see each other every week. He was able to reason with her when she was arguing with her parents, but since he left, conflict between them has increased.
70. Like her son, she did not think that Mr Lin was using her daughter in order to obtain an Australian visa.
71. She did not think it would be possible for Amanda to move back to live with the family. They could not get along when she lived with them before and she was unable to control herself when Amanda was doing something wrong, and that led to many arguments. When Amanda was living with the family, Mrs Chiu herself had to obtain psychological support. But since Amanda has been with the visa applicant, Mrs Chiu can have a peaceful and happy life.
72. The applicant’s father, Mr Ying Ming Au, gave written evidence to a similar effect (Exhibit A7).
73. Nine other written statements were tendered in support of the applicant’s case (Exhibits A8 to A16). They attest to his good character, his helpfulness, and his active participation in community voluntary work in China since his return from Australia.
74. The statements reflect little genuine concern about the seriousness of the visa applicant’s migration misconduct, and indeed some attempt to defend it as completely justified. Dr Eddie Pang (Exhibit A8) considered that Mr Lin “had all the reasons to behave the way he did. Consider the scenario John was an illegal immigrant, he had to keep [sic] ends meet. So, John, as any decent person would do, he went to find a job … He had no choice but to keep breaking the law just because he had no status!”. Dr Pang thinks the visa applicant is being persecuted and discriminated against.
75. Mr David Taylor (Exhibit A11) noted that Mr Lin had just enough money to get by, which was why he was working in Australia. That “appears to be something that the Department of Immigration has overlooked in deciding to disallow Mr Lin’s application to return to Australia”.
Application of the Law and Findings of Fact
76. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), the visa applicant passes the character test having regard to his past and present general conduct. The application of the character test 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:
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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…
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In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
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The character test, therefore, requires an objective consideration of the applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
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77. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).
78. As Senior Member Ettinger has said, “There must be an honesty and integrity amongst visa applicants on which the authorities can rely so that they are treated fairly and that their claims are assessed by the same standards” (Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246, paragraph 17).
79. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the visa applicant does not pass the character test, I must consider whether to exercise 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, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
80. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 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 are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
81. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
82. I find that the visa applicant has committed breaches of immigration law including using a bogus passport and visa and making false or misleading statements in connection with visa applications within the contemplation of paragraph 1.9 of Direction No 21. He seeks to place responsibility for his false protection visa claims on his then migration agent. But as Deputy President Purvis pointed out in the analogous case Re Grech and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 22, at para 52, the applications were made by the visa applicant, he was a party to the making of the false submissions and maintained their falsity through the various stages that he sought to pursue. It is not open to him to claim ignorance of the position that he was maintaining. He evaded income tax throughout his ten-year stay in Australia.
83. Several character references were tendered on the visa applicant’s behalf, but as was noted above, they reflect little awareness of the seriousness of his conduct and some of them appear to treat some major breaches of migration law as matters beyond the visa applicant’s control.
84. Other references attest to his active participation in various community service activities since his return to China in February 2006. The respondent submitted that the timing of those efforts suggested that they had been undertaken with a view to strengthening his spouse visa application, but as Mr Turner pointed out, that hypothesis was not put to him in cross-examination, thereby precluding such a conclusion. The most one can say is that his volunteer community work, while commendable in itself, is of recent date.
85. On the other hand, his attempts to mislead the tribunal in his evidence at the hearing point to the conclusion that his reform and rehabilitation are purely superficial. His expressions of regret must therefore be viewed as largely tactical. There is no evidence that the visa applicant has committed any other types of offences in Australia, but his record of migration law violations is serious in itself, and the applicant’s character in a migration sense is central to these proceedings.
86. On the basis of all the evidence I find that the visa applicant does not pass the character test by reason of his past and present general conduct.
87. Having so decided, I must then consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether to grant a visa to the visa applicant. In exercising that discretion, the tribunal has 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:
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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.
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88. Paragraph 2.3 sets out the primary considerations:
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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.
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Paragraph 2.4 explains:
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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.
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89. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (c) serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
90. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
91. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including presenting a false or forged document or “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. In this case, the visa applicant used a bogus passport and visa to enter Australia and has made multiple false or misleading statements in connection with entry or stay in Australia. He continued to do so in his evidence at the hearing. It is clear that the visa applicant is a person who will say or sign anything in order to obtain a benefit. In my view his conduct must be viewed as very serious.
92. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]. The respondent submits that the visa applicant has demonstrated a willingness to disregard Australian laws, and in particular the Australian migration system, and that there is a considerable risk the visa applicant will continue to act unlawfully and dishonestly if he is permitted to re-enter Australia. As was pointed out above, his attempts to mislead the tribunal in his oral evidence do not suggest that he is rehabilitated and his professions of regret and remorse must be treated with some reserve. His regret appears to relate more to the consequences of his actions than to the actions themselves.
93. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The applicant sought to discount that factor, and it is true that the deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
94. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa refusal is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. Granting a visa in the present case could send a wrong message to those contemplating acts violating Australian migration law.
95. Community protection considerations thus weigh against the grant of a visa to Mr Lin.
Expectations of the Australian Community
96. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
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Visa refusal … 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.
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97. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are a number of economic, historical and other reasons for that: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
98. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and IndigenousAffairs [2002] AATA 458, at para 7(m)).
99. In my view, the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. This application, like all such cases, must be decided on its own facts, however. A signal feature of this case is the multiple and serious medical and psychiatric conditions afflicting the applicant and the generally precarious state of her physical and mental health. There is uncontradicted evidence that the visa applicant has had a positive influence on her condition and appears to be the only person who is able to exert such an influence. Her condition has deteriorated since his return to China. The applicant is an Australian citizen and I think the visa applicant’s demonstrated ability to support and care for her in a variety of important ways could well offset the community’s normal and quite proper view that people who engage in sustained and serious breaches of migration law should not be permitted to benefit from their misconduct.
The Best Interests of the Child
100. There is no child whose interests need to be considered under this heading.
Other considerations
101. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states 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 include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; 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; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
102. In this case the relevant matter is that of a “genuine marriage to … an Australian citizen” (paragraph 2.17(b)).
103. The tribunal therefore prima facie has jurisdiction to consider the genuineness of a marriage, especially where, as here, there is no decision of the Migration Review Tribunal on the point.
104. The multiplicity of medical and psychological problems from which Ms Au suffers inevitably raises the possibility that Mr Lin’s commitment to her is more a function of her citizenship than of her personal qualities. There are, of course, self-sacrificing spouses in the world, but Mr Lin’s prior record of unscrupulous and deceptive migration behaviour means that one cannot automatically assume that he is one of them. Such cases raise the possibility, on the basis of similar cases in the past, that once the visa applicant obtains permanent residency he could end the marriage and abandon Ms Au (see Re Scorgie and Minister for Immigration and Citizenship [2007] AATA 1654 at [99] upheld on appeal in Scorgie v Minister for Immigraton and Citizenship [2007] FCA 2046; Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 at [76] to [77]).
105. The respondent did not raise that as an issue. Given the moral turpitude in the visa applicant that such an ulterior motive would imply in the case of a person as unfortunate as Ms Au, or the likely emotional effect on her of advancing that issue at the hearing, it might have been inappropriate to do so without clear evidence, either pre-existing or elicited in cross-examination.
106. In chief Mr Turner very properly asked Ms Au’s mother and brother whether they thought that the visa applicant might be using Amanda to return to Australia, and they replied in the negative. He did not put the corresponding question to the visa applicant himself, but was under no obligation to do so.
107. Given the difficult life that Ms Au’s family have had with her, it implies no disrespect to them to say that they might be more than usually well disposed towards giving their daughter’s husband the benefit of the doubt on that point.
108. There is consequently no evidence that the marriage is anything but genuine and, on the other hand, uncontradicted evidence to support its genuineness. There is also uncontradicted evidence that Ms Au’s separation from her husband is causing her parlous condition to deteriorate further. Dr Loke’s prognosis was that her condition would continue to degrade to the point that she would be quite unable to take care of herself, let alone make any physical or psychological progress. Her deterioration would be likely to trigger depression in her parents also.
109. It is therefore plain that Ms Au and her parents are likely to suffer severe hardship if Ms Au and Mr Lin remain separated.
110. On the evidence it would not appear practicable for Ms Au to move to China to live with the visa applicant there. Although health care standards have apparently improved markedly in many areas of the PRC, with her multi-faceted pathology it is unlikely that her husband could afford all the treatments she needs on his construction worker’s wages. Ms Au herself seems to be unemployable.
111. Ms Au was aware of the visa applicant’s unlawful status from an early stage of their relationship, a circumstance that normally reduces the weight to be given to other considerations of this kind. In view of her marginal intelligence, however, together with her demonstrated inability to make rational decisions affecting her future, I do not think her awareness of his status has the effect that one would normally ascribe to it.
112. In this case, community expectations can be regarded as a neutral factor, for the reasons I have already given. The protection of the Australian community weighs against the grant of a visa, and in the normal case that primary consideration is not outweighed by other considerations. This case, however, is exceptional and I think the discretion should be exercised in favour of granting Mr Lin a visa.
113. The decision under review is set aside and the matter remitted to the respondent for reconsideration on the basis that the discretion be exercised in favour of the visa applicant.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ........................[sgd].................................................
R. Wallace, AssociateDate/s of Hearing: 10 and 11 December 2007
Date of Decision: 11 January 2008Solicitor for the Applicant: Mr Ray Turner, Parish Patience
Solicitor for the Respondent: Ms Therese Quinn, DLA Phillips Fox
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