Chen and Minister for Immigration and Multicultural Affairs
[2001] AATA 829
•28 September 2001
CATCHWORDS – MIGRATION – character test – whether relied on bogus documents and misstatement in application for visa – evidence leads to state of uncertainty – whether applicant bears onus of proof – whether discretion should be exercised - decision set aside.
Migration Act 1958 – s 501
McDonald v Director-General of Social Security (1984) 6 ALD 6
DECISION AND REASONS FOR DECISION [2001] AATA 829
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2001/293
GENERAL ADMINISTRATIVE DIVISION )
Re: YAO MING CHEN
Applicant
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Tribunal: Miss S A Forgie (Deputy President)
Date:28 September, 2001
Place: Adelaide
Decision:The Tribunal:
1.sets aside the decision of a delegate of the Minister dated 3 August, 2001; and
2.substitutes a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 10 August, 2001, the applicant, Mr Yao Ming Chen, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("Minister") dated 3 August, 2001. That decision was to refuse Mr Chen's application for an Australian-linked visa (subclass 105). The basis of the delegate's decision was that Mr Chen did not pass the character test set out in s. 501(6)(c)(ii) of the Migration Act 1958 ("the Act").
At the hearing, Mr Chen was represented by his migration agent, Mr Ng and the Minister by his counsel, Mr Leerdam. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with the originals of certificates included in the T documents and an undated witness statement by Ms Isabel Pak. Oral evidence was given by Mr Chen in support of his case while Ms Pak gave evidence in support of the Minister's case.
Mr Ng sought to call oral evidence from Ms Wu Hui Xiang, who had worked with Mr Chen at the Plaza Canton Hotel, and Ms Li Yi Wei, who has worked at the hotel since 1989 and is its Deputy Chief Accountant. I did not permit him to do so as s. 500(6H) of the Act provides that:
"the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review."
Although the issue they were to address is clearly one that has long been an issue between the parties, there is nothing in the material that may be construed as a statement from either Ms Wu or Ms Li. Notice of the requirements of s. 500(6H) were given to Mr Chen in a document headed "Information About Review Rights" attached to the notice of decision dated 3 August, 2001.
While not objecting to Ms Pak's being called, Mr Ng expressed some concern that Mr Leerdam was permitted to call her. The Act, however, does not purport to limit the Minister's ability to call evidence in the same way. That meant that I had to consider whether it was appropriate that Ms Pak be called. The purpose of her being called was to address an issue that was well-known to the parties and to support a position (i.e. that Mr Chen did not work at the Plaza Canton Hotel.) That position was equally well-known to them. In the circumstances, I did not consider that permitting her to be called was unfair to Mr Chen.
THE ISSUES
The first issue is whether Mr Chen passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.
BACKGROUND
On the basis of the evidence, I am satisfied that, on 21 December, 1995, Mr Chen signed an application for a visitor visa to enable him to visit Australia from 1 February, 1996 to 1 May, 1996 (T documents, pages 10-18). He said that he would visit his brother, who is a permanent resident of Australia, during that time. His brother would support him during his visit and pay his medical insurance for his visit.
Mr Chen arrived in Australia on 17 April, 1996 on a three month visitor's visa. It ceased on 17 July, 1996 and, on 13 August, 1996, Mr Chen lodged an application for a subclass 105 visa. In his application, Mr Chen stated that he had married Xie Huihong on 4 May, 1988. Her address was "3, 3rd floor, Rui Hui Li, He Nan Tong, Fu Xi, Ru, Zi Yi Zhi Jie, Guang Zhou, Guang Dong, China" (T documents, page 93). At the date of the application, she worked at the Jiang Nan Hotel as a book keeper and had done since June, 1990. The Jiang Nan Hotel was later known as the Plaza Canton Hotel.
Among the criteria Mr Chen must satisfy if he is to be granted that visa is that, at the time the decision is made, he has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act (Migration Regulations ("Regulations"), r. 105.222). Sudivision B provides for the "points system" which assesses applicants by giving each of them a prescribed number of points for each prescribed qualification each satisfies (s. 93). The prescribed qualifications for a Skilled Australian-linked visa is set out in Schedule 6 to the Regulations (r. 2.26). Part 1 of Schedule 6 is concerned with the employment qualification. Item 6102 provides, in essence, that an applicant receives 70 points if his or her usual occupation is one for which, in Australia, a degree or trade certificate is required or that is a professional-equivalent occupation and the applicant has certain qualifications or work experience as prescribed. Of relevance to Mr Chen are the requirements that his usual occupation:
"(c) is an occupation in respect of which, at least 3 years before the relevant application was made, the applicant:
(i)obtained a degree, trade certificate, diploma, associate diploma or post-trade qualification assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(ii)completed work experience assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; or
(iii)completed a combination of academic or professional study or trade training and work experience that together are assessed by the relevant Australian authority to be equivalent to the Australian standards for the occupation; and
(d)is an occupation in respect of which the applicant has qualifications or experience (or both) required for the purpose of holding any Australian occupational licence or registration (or both); and
(e)is an occupation in which the applicant was employed on the day that is 3 years before the day on which the relevant application was made; and
(f)is an occupation:
(i)in which the applicant has worked; or
(ii)is closely related to an occupation in which the applicant has worked;
for a period of 2 years, or periods that total 2 years, in the period of 3 years ending on the day before the day on which the relevant application was made." (Schedule 6, item 6102)
In a letter dated 1 August, 1996 accompanying that application, Mr Ng advised that the skill requirement was that Mr Chen had completed an apprenticeship and have worked in international standard hotels for at least three years. He stated that Mr Chen had completed his apprenticeship at the Dong Fang Hotel in China between 1983 and 1989. That is a five star hotel, he said, catering for up to 500 people. On 18 September, 1990, Mr Chen was given a Grade 2 Chef Trade Certificate. Mr Ng went on to state that "Mr Chen is currently working as a executive chef with the four-star Jiang Nan Hotel in China from 1993 to 1996" (T documents, page 83). Since arriving in Australia, Mr Chen has worked as a cook in Chinese restaurants.
THE EVIDENCE
The focus of attention during the case was largely upon whether or not Mr Chen is qualified as a chef and worked at the Plaza Canton Hotel in Guangzhou in China as an Executive Chef. That required a consideration not only of the oral evidence but also of the documentary evidence.
Certificates relating to relationships and past convictions
In his application for a visitor visa, Mr Chen stated that his date of birth was 6 November, 1964. That is also the date shown on his passport issued by the Ministry of Foreign Affairs of the People's Republic of China (T documents, page 19).
A document headed (as translated in the English language) "Certificate of Relationship". It was dated 18 December, 1987 and stated that it had been prepared by Yu Weiying, a notary with the Notary Public Office in Guangdong Province. The document set out the relationships of Chen Yao Chu who was born in 1963 and was "now residing in Guangzhou" (T documents, page 50). It named his parents and two younger brothers, one of whom was Mr Chen born in 1964.
A subsequent "Certificate of Relationship" was dated 2 January, 1996 and was prepared by Lin Dingyuan of the Tianhe Notary Public Office in Guangdong Province. It stated that Mr Chen was "now residing in Room 101, No. 7, Fengyuandong Street, Liwan District, Guangzhou City" (T documents, page 53). The document certified that Mr Chen is the husband of Xie Huihong and the father of Chen Qi'An, who was born on 7 December, 1993.
A third "Certificate of Relationship" dated 2 January, 1996 was also prepared by Lin Dingyuan. It certified that Chen Yaochu, who was "now residing in the Commonwealth of Australia", is the elder brother of Mr Chen "now residing in Room 101, No. 7, Fengyuandong Street, Liwan District, Guangzhou City" (T documents, page 55).
A further certificate, which was also dated 2 January, 1996 and prepared by Lin Dingyuan, certified that:
"… Chen Yaoming (male, born on November 6, 1964, now residing in Guangzhou City) had no record of committing offences against the criminal law up to December 18, 1995 during his residence in China." (T documents, page 59)
Lin Dingyuan also certified that Mr Chen had been born on 6 November, 1964. That certificate was dated 2 January, 1996.
On 24 July, 1996, a notary with the Notary Public Office of Guangdong Province, Liang Quansheng, certified that:
"… Chen Yaoming (male, born on November 6, 1964, now residing at Room 101, #7, Fengyuandong Street, Guangzhou, Guangdong Province) has no record of committing offences against the criminal law during his residence in China up to this day." (T documents, page 129)
Another notary, Lin Jian, from the Notary Public Office at Guangdong Province certified that Zie Huihong was born on 20 August, 1967 and that Chen Qian was born to Mr Chen and Xie Huihong on 7 December, 1993. Both certificates are dated 12 March, 1997 (T documents, pages 120 and 123). A third certificate dated the same day and also prepared by Lin Jian stated that:
"… Xie Huihong (female, born on August 20, 1967, now residing at No. 3, Ruihuali, Tongfuxi Road, Guangzhou, Guangdong Province) has no record of committing offences against the criminal law during her residence in China up to this day," (T documents, page 132)
The address given for Xie Huihong's was the same as that given in Mr Chen's application and the supporting sponsorship application completed by his brother on 5 August, 1996 (T documents, pages 101 and 107).
Documents relating to qualifications as a chef
In his application, Mr Chen did not give any details of his apprenticeship when asked in his application form for "… full details of all the education you have had and include details of any qualifications you have" (T documents, page 90). He did not attach any copy of his qualifications when asked to do so. Under the heading of "Employment", he did describe his training when asked to do so. He described it as "prepare meal, cooking, chopping meat, vegetable etc" (T documents, page 90). Mr Chen described his occupation as "chef" and said that the Guan Dong government had granted him his licence or registration. He described his work with the Dong Fang Hotel between 1993 and 1996 as that of a cook. His work at the Jian Nan Hotel was described as executive chef and as a part time position. He worked there between 1993 and 1996. At the same time, Mr Chen stated, he was a part-time manager with the Hua Tong Transport.
Documents relating to employment
In his application form for a visitor visa, Mr Chen said that he was employed by Lu Gui Lian and had been for the previous three years. His employer had agreed, he said in his application, that he could have leave for three months and that he could return to his position when he returned from Australia. In a letter dated 30 October, 1995, Lu Gui Lan said that:
"Mr Chen Yao Ming is one of the business executives in our company. He has been worked for us for 3 years with a monthly salary of 8 thousand yuan RMB. He is now applying for visa to Australia to visit his elder brother who is now ill in Australia. We've allowed him a 3-month vacation from work and hope you will approve his application." (T documents, page 41)
The notary, Liang Quansheng, certified that a duplicate copy of a Certificate for Intermediate Technical Grade No. 093528 issued by the Guangzhou Labour Bureau to Chen Yaoming on 18 May, 1990 was authentic. He stated that the "… special embossed seal for issuing certificate through examination and the special seal for certificate of the said bureau, affixed on the original copy, are found to be authentic" (T documents, page 154 and see also page 152). The certificate for Intermediate Technical Grade stated that the type of examination had been cook, that the approved technical grade was Grade 2 cook and that Mr Chen had achieved a score of 390 for technical theory and 430 for practical operation skill.
On 24 July, 1996, Liang Quansheng certified that the duplicate copy of a document was
"… in conformity with the original Certificate for Title of Speciality and Technology No. 090513 issued by the Examination Committee for Speciality and Technology of Guangdong Catering Trade Service on May 18, 1990 to the holder Chen Yaoming (male, born on November 6, 1964). The special seal for issuing certificate of Guangzhou Labour Bureau, the seal of the said Committee and the special training seal for cantonese dishes cook of Guangzhou Service Tourism Polytechnical School, affixed on the original copy, are found to be authentic." (T documents, page 159)
The translation of the original certificate stated that it was issued by the Examination Committee for Specialty and Technology of Guangdong Catering Trade Service (T documents, page 157).
A notary in the Guangzhou Notary Public Office, Liang Guobin, certified on 6 August, 1996 that Mr Chen worked at the Chinese Kitchen Department of the Dong-fang Hotel in Guangzhou from February, 1983 to January, 1993 (T documents, page 162). A further certificate dated 1 August, 1996 by a different notary, Lin Jian, certified that Mr Chen had worked as a cook in the Chinese Food Department in the Jiang Nan Hotel from February, 1993 until April, 1996 (T documents, page 165).
On 19 November, 1998, the Australian Embassy in Beijing, asked Mr Chen to undertake a trade test at the Regency Institute in Adelaide (T documents, page 224). Mr Ng advised that the Regency Institute was closed over Christmas. Mr Chen travelled to China between 10 February, 1999 and 18 March, 1999 (T documents, page 251).
An assessment report was prepared by the Regency Institute on 3 May, 1999. During a Practical Skills Assessment, Mr Chen undertook a series of Practical Skills Assessment for Cooks including oral/commodities, theory, a practical test and food hygiene practices. He passed all of those tests. During the practical test, Mr Chen "… presented a 8 course Chinese banquet menu incorporating a range of regional cuisine (Cantonese, Beijing, Chiuchou and Shanghai) with flair and confidence" (T documents, page 229). He was also found to:
"… demonstrated good workflow, kitchen operation, management, hygiene practices and organisational skills. He possessed sound technical knowledge of commodities and application of fresh and dried commodities. He applied good practical cooking skills, clean and good plate presentation with a high degree of efficiency and professionalism. He demonstrated sound knowledge in the application of occupational, health and safety in a commercial kitchen environment.
Mr CHEN's competency evidence of knowledge and skills in a commercial kitchen meets the requirements of Australian Qualifications Framework Level 3 Commercial Cook.
…
'Australian Qualifications Framework (AQF) Level 3 cook has the ability to plan menus, possess technical knowledge of the properties of ingredients, use correctly and professionally a range of commercial equipment and work under limited supervision. Competency at this level involves the application of knowledge in depth in some areas and a broad range of skills.'" (T documents, page 229)
In a letter dated 20 September, 1999, Mr Ng explained that Mr Chen's work history in China was:
1983 to 1. 1999 Dong Feng Hotel Chef (full time)
2.1993 to 4.1996 Plaza Canton Hotel Executive Chef (Part-time) Monday to Saturday 6pm to 2am. RMB $3800 per month
2.1993 to 4.1996 Huatong Transport Company Sales Manager (Part-time) Average 10 to 25 hours per week RMB $1000 per month
A note dated 22 March, 2000 from the Guangzhou Visa Office of the Australian Consulate-General ("Visa Office") to the Guangzhou Labour Authority (or Department) received the following response on the same day (as translated by Li Lian Mai):
"After checking, our office has 3 records of 3 people named Chen Yao Ming. They all obtained cook certificates in 1990. However, the number, the test result and the issue date on the certificate, which you faxed to me, are not as the same as our records. We checked and also found that the seal on the certificte was fraudulent." (T documents, page 235)
A document headed "Work Testimonial of Chen Yaoming" was dated 4 June, 2000. It read:
"This is to certify that Chen Yaoming was the executive chef of our hotel from February 1993 to April 1996.
His main task were in charge of the kitchen of the Tang Palace Restaurant.
He was responsible for the menu and new dishes. He was responsible for the hiring of the staff in the kitchen and dinning (sic) room. There were over 100 workers in the restaurant.
His daily duties were orders food, organize large banquet booking, checking the food standard and training staff." (T documents, page 238)
Material from the Plaza Canton Hotel listed eight restaurants (T documents, pages 207-210)
On 1 September, 2000, the Visa Office asked Mr Huang at the Human Resource Department of the Plaza Canton Hotel to verify Mr Chen's work reference. A translation of that response read:
"After checking, we find that our hotel has not had any record of Chen Yao Ming since the hotel was established. Our department has never issued any work reference letter for Chen Yao Ming." (T documents, page 242)
The Visa Office sought Mr Chen's comments about the validity of his documents and replied:
"When I (Chen Yao Ming) lodged my application, all the notarial certificates were all approved by the Nation Notarial Office which had already sent someone to investigate and confirm the record from China Labour Bureau were true and reliable.
I have no idea why there was no record from Labour Bureau now. The only reasonable explanation is that after so many years there were great changes in human resources and the files were not kept properly. This is very common in China that people who work there will say no files rather than taking responsible for missing the files in order to keep their position.
As to the Jiang Nan Hotel (the place where I worked), I contacted them and they said they remembered there was a new colleague at that time, instead of telling there was no such person, they would not bother checking the files. After I called them several times, the authority of the Hotel wrote me a certificate to certify that I did work there for a period of time. The following is the copy of the certificate and the original one will be mailed to you soon." (T documents, page 247)
The certificate sent by Mr Chen stated that "Mr Chen Yao Ming used to work in our hotel. He worked as a cook and supervisor. He worked here from February 1993 to April 1996. He did a good job when he worked here." (T documents, page 250)
Oral evidence of Mr Chen as to qualifications and employment
Mr Chen said that he was apprenticed to a chef who was a first class chef in Guangzhou. In 1990, Mr Chen said, he studied cooking at a class after he had performed well at work. He was awarded a certificate on 18 May, 1990.
He moved to the Plaza Canton Hotel in 1993 and worked there until 1996. Above him in seniority was the catering manager. At that time, it was Huo Bing Wen. Mr Chen said that approximately 200 people were under his supervision. When those who worked in the restaurant were taken into account, there were 300 people. Approximately one thousand people worked in the hotel. Mr Chen said that there is a very high turn over of jobs in the hospitality industry and staff change every month. The hotel could have 6,000 workers in any one year. His job was to plan menus, including special menus for banquets, for the restaurants in the hotel. Those menus had to cater for very different clientele in the hotel. In addition to planning, he had to go into the kitchen and be part of its operation.
Mr Chen said that employees in a work unit are registered with the Labour Department but each work unit had its own personnel department. In the early days, computers were not available and the concept of keeping records was "not that advanced". Papers would be written on and then put on a shelf. There are approximately ten million workers in the Guangzhou District. The Labour Department did not have a computer in the beginning. How well it is operating now, he said, he did not know. All he knew was that the Notary Office verified his employment at the Labour Department. There is a difference between the manner in which the Labour Department deals with the Notary Office and the manner in which it deals with an individual citizen. There was nothing untoward in the suggestion that the Labour Department may not check the records unless an "advantage" were given to them.
The Plaza Canton Hotel started in 1988 and there would now be a huge number of documents. When his sister approached it to ask it for records about him, she was not treated with a welcome attitude, he said. That occurred because it is difficult for the staff to find the records. It is possible that, if the staff are not given a "benefit", they may not check the records.
Notary offices in China, Mr Chen said, are the "most authentic agencies". They verify documents before they certify them. It is a bit like a credit rating agency in a business sense. In relation to his work certificates, the Notary Office had to verify them with his work unit before it could issue a certificate. In relation to any criminal history, the office would contact the "street level police station" in the district in which he lived and verify his record with its records. In relation to the certificate dated 1 August, 1996 regarding his work at the Jiang Nan Hotel (now known as the Plaza Canton Hotel) (see paragraph 22 above), Mr Chen said that the Notary Office would have had to go back to the hotel to check his employment. At the time that he obtained that letter, he was in Australia. He said that he contacted China and asked the hotel to write a letter to prove that he had worked there at the time that he had done so. He sent the letter to the Notary Office and it would have checked it with the hotel.
Mr Chen said that he obtained the work testimonial dated 4 June, 2000 (see paragraph 27 above) by asking his younger sister to go to the hotel and tell them what he needed. It was signed by Mr Wong who, Mr Chen said, his sister had told him was the Manager of the Personnel Department. He asked his sister to go to the hotel again when he was asked to prove his employment. She was given the document that he sent to the Visa Office (T documents, page 250; see paragraph 30 above).
In cross-examination, Mr Chen said that his sister had gone to the hotel on each occasion to obtain the certificates for him. He could not do it as he was in Australia. His understanding of the steps taken by the Notary Office is based on what he knew of it in April, 1996 when he left. Also in cross-examination, Mr Chen said that he had not paid any "benefit" to obtain the certificates but did not know whether anyone else had done so. In everyday life in China, he said, you come across that all the time. If you do not pay, you do not get the service. It is a reality of life, he added. In the case of the certificates, he knew that his sister paid money to a different section of the Notary Office and that was its Finance Section. She did not pay money to the person giving the certificate. When he had said that he did not know if anyone else had paid a benefit, he explained, he had meant that he did not know if anyone else would pay a benefit. As for him, neither he nor his family members paid a benefit.
With regard to the certificate of convictions dated 24 July, 1996 showing his address as being "Room 101, #7, Fengyuandong Street, Guangdong Province)", Mr Chen denied that it contained any false information. He said that it stated that he had no criminal convictions. That was true. The certificate referred to his time in China. The address used referred to the address used for his household registration. That was his last address before he came to Australia. He was in Australia on a tourist visa and his departure was temporary. The address used in his application for a visitor visa was "3/F 3 Shui Hua Li Tongfuxi Road". That was the address where he could be contacted. It was his mother's address where he went everyday.
As to the test he passed at the Regency Institute, Mr Chen said that the written test took approximately two hours and the practical approximately three hours. If a person were not experienced in a commercial kitchen, he said, he or she would not be able to pass the test. It was important to know not only the theory but also to be able to put it into practice.
Oral evidence of Ms Pak
Ms Pak is the Human Resources Manager of the Plaza Canton Hotel. She had held that position for two months and had previously worked at the Holiday Inn in Guangzhou. She confirmed her undated statement that there were no employment relating to Mr Chen and that the hotel has never issued a work testimonial to him. She said that there is no record of Mr Chen's having been employed at the hotel as an executive chef or otherwise. There is a position of executive chef in the hotel. The person occupying that position currently oversees approximately 105 staff. The position of executive chef is not an important position in the hotel.
With regard to the name shown on the work testimonial dated 4 June, 2000, Ms Pak confirmed that it was the name of the hotel's previous Human Resources Manager. She did not know whether or not it was his signature. The stamp appearing on that document was not a stamp used by the Human Resources Department. The stamp had been used in the hotel in the past but not for a long time. Ms Pak said that she could identify the document dated 2 September, 2000 and purporting to reply to a request from the Visa Office, as a document issued by the hotel. She did not recognise the certificate dated in 2000 (T documents, page 250; see paragraph 30 above) as a document issued by the hotel. Her reason for not recognising it was that the other document had been sent in response to a request from the Visa Office. Having done that, there was no reason to issue a second document.
Ms Pak said that she did not carry out the searches for documents herself but had asked her staff to do so. Records are kept both on computer and in files. Although records need be kept for only five years, the hotel had all its records from its inception. Ms Pak said that she could not guarantee that all of the information in the manual files was on the computer. She said that all of the places had been checked but that nothing could be found. She did not deny that it was possible that some information had been lost.
CONSIDERATION
Framework of Act
Under the Migration Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Regulations (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a sub-class 105 visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 as specified by cll. 850.222 and 851.223 of Schedule 2 of the Regulations (item 105.222). Schedule 4 sets out the public interest criteria.
At the time that the delegate's decision was made and of this review, criterion 4001 provided that:
"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test."
Section 501(1) of the Act provides that:
"The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test."
The "character test" is set out in s. 501(6), which provides that:
"For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(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
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test."
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act. Those directions were in force at the time that the delegate made his decision in relation to Mr Chen. After the hearing, the Minister made further directions on 23 August, 2001; Direction – Visa Refusal and Cancellation under section 501 – No.21 ("the Direction").
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."
Does Mr Chen pass the character test?
In considering whether or not Mr Chen passes the character test, s. 501(6)(c)(ii), which relates to past and present general conduct, is relevant. The Direction states that decision-makers should consider the matters set out in paragraphs 1.9 to 1.11. Where there are no countervailing factors, the Direction states that a person does not pass the character test. Among the matters that must be considered are:
"(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." (paragraph 1.9(b))
Whether or not Mr Chen comes within the scope of this paragraph depends upon whether or not the documents relating to his cooking qualifications and his claim that he worked at the Plaza Canton Hotel are genuine. This has not been an easy matter to resolve.
I will look first at the evidence supporting the view that the documents were not genuine. There were two documents that fell into that category. Both were responses to the Visa Office. The first was said to be from the Guangzhou Labour Office and the second from the Plaza Canton Hotel. The only basis upon which their origin could be identified was the fact that both responses had been written on the Visa Office's facsimile message to each. There was no reference to the position held by the person writing the response or the checks that either had made.
Both replies refuted the claims made by Mr Chen; one in relation to his qualifications and the second in relation to his employment. The document from the hotel was supported by oral evidence from Ms Pak (T Documents, page 242; see paragraph 28 above). Unfortunately, Ms Pak was not in the best position to comment upon the matter as she had neither written those documents nor been employed by the hotel when they were written. She had been employed by the hotel only during the last two months. Except in one regard, all that Ms Pak's evidence did was to confirm that the Plaza Canton Hotel held records, both in computer and paper form, back to its inception and that staff in its Human Resources Department had checked those records and been unable to locate any relating to Mr Chen. The one exception to this was with regard to the stamp used on the document dated 4 June, 2000 purporting to be written by the hotel. She said that it was a stamp that had been used by the hotel but not for a long time.
Mr Chen sought, in effect, to explain the lack of confirmation by both the Guangzhou Labour Office and the Plaza Canton Hotel by reference to either or both of two factors. The first was poor record keeping in both and the second was that the Notary Office would have checked the claims with each before issuing its certifications as to his qualifications and employment. There was no evidence led that either was in fact the case. In relation to the Plaza Canton Hotel, it is true that Ms Pak had only been in the position for two months, had not herself checked the records and had not installed the updated software in the computer used by the Human Resources Department. That, however, is not evidence that the records were in a shambles or not kept. In relation to the Notary Office, there is no evidence other than Mr Chen's evidence. That reflects his understanding of the role of the Notary Office. That may be an accurate understanding but the difficulty that I have is that there is no evidence that the documents were prepared by the Notary Office. Mr Chen cannot say that they were for, although he said in the first instance that he obtained at least one of them, he later acknowledged that his sister had obtained the documents and sent them to him.
It could perhaps be understood if documents obtained from either the Guangzhou Labour Office or from the Plaza Canton Hotel were not verified when the Visa Office checked with those organisations. It could be thought more easily that a mistake had been made. It is less easily understood when both of them fail to verify the documents. Mr Ng submitted in his letter to the Tribunal of 14 May, 2001 that:
"6. In China, the data keeping system is not perfect. In fact, the administration system is also open to abuse and corruption. To obtain data from the bureaucratic administration, one is put on the mercy of the person in charge. If one pays, one can obtain any information or document on record or even bogus document not on record. If one does not pay, even the data is there and the office might deny it is there."
Mr Ng's argument cuts both ways. It could be said that the Visa Office did not pay for the information and so the Guangzhou Labour Office and the Plaza Canton Hotel did not look for the records. Equally, on Mr Ng's argument, it could be said that Mr Chen's sister paid for the documents and that they were bogus documents.
The address shown for Mr Chen on the certificate relating to his convictions was dated 24 July, 1996 stated that Mr Chen was "now residing in Room 101, # 7, Fengyuandong Street, Guangzhou" (see paragraph 16 above). At that time, Mr Chen acknowledged, he was living in Australia. He explained that the Notary Office would have used his last registered household address and so was accurate. The address did not change just because he was away from it. A comparison could be made, however, with the certificate of relationship prepared on 2 January, 1996 certifying that Chen Yaochu, who was "now residing in the Commonwealth of Australia", is the is the elder brother of Mr Chen "now residing in Room 101, No. 7, Fengyuandong Street, Liwan District, Guangzhou City" (T documents, page 55). That reflected Chen Yaochu's current residence as opposed to the address of his last registered household in China. By 24 July, 1996, Mr Chen was just a week over the three month visa he had applied for. It is arguable that he could be said to be away from China on a visit. He did not lodge his application for a 105 visa until a month or so later on 13 August, 1996.
I have considered also Mr Chen's applications to the Department. In his application for a visitor visa, he made no reference to his employment as a chef. He referred only to his employment with Lu Gui Lian and attached a letter from that company giving him leave. Mr Chen explained at the hearing that he did not want to let the Plaza Canton Hotel know that he was travelling overseas. He did include details of his employment with the Plaza Canton Hotel in his application for a 105 visa. Although he stated that he had obtained qualifications with the Guang Dong government, he did not include any reference to the Guangzhou Service Tourism Polytechnical School and the qualification he obtained. The more general reference to the qualification as a chef from the Guang Dong government might, however, be read as encompassing the more specific reference to a qualification from a school.
In relation to the two witnesses whom Mr Ng sought to call regarding Mr Chen's employment at the Plaza Canton Hotel, he said in his letter of 20 September, 2001 that "There is no other person in the hotel were working during the same period as Mr Chen and can be a witness." Both witnesses are in China as is Mr Chen's wife. In his application for the 105 visa, Mr Chen stated that his wife had worked at the Jiang Nan Hotel as a book keeper since 1990. As the Jiang Nan Hotel was later known as the Plaza Canton Hotel, it follows that she also worked at the hotel during the time he was also employed by it. She was not called to support his evidence and no reason was given for her not being called. At the same time, the issue was not taken up with Mr Chen and he was not asked to explain her absence.
This is not an easy case. There is inadequate evidence regarding the veracity of the documents and of Mr Chen's claims generally. On the one hand, are Mr Chen's claims and on the other are the documents, whose veracity is called into question, and statements that those documents are not authentic. The qualifications of those making those statements are either unknown or, in the case of Ms Pak, limited in view of her recent employment with the Plaza Canton Hotel. Overriding all of this is the suggestion that officials and others can be bribed to obtain documents, a misstated address in a certificate and Mr Chen's failure to call his wife to give evidence. Having regard to these matters and to the matters I have addressed above, I am satisfied of only one thing. That is that Mr Chen not only can cook but can do so in a commercial kitchen. On the basis of the report from the Regency Institute, I am satisfied that he can do so competently and with flair at the level of a Level 3 Commercial Cook. I am not satisfied on the balance of probabilities that Mr Chen's documents can, without more, be regarded as either genuine or bogus. The evidence of Ms Pak does not satisfy me and nor do the responses to the Visa Office's facsimiles. The persons providing those responses and their searches needed to be explored in much greater depth.
It follows that I cannot, without more, be satisfied whether or not Mr Chen provided a bogus document with his application or that he made a false or misleading statement in connection with it. Apart from Mr Chen's stated belief in the documents the only other evidence relating to his being or not being of good character is his evidence of his having worked in Australia and of his not having been in any trouble since he has been here. Neither factor takes me out of my state of uncertainty. If the documents are genuine, I would be satisfied that he passes the character test. If they are not genuine, I would not be satisfied for, as I said in Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 (unreported, 28 April, 2000) in relation to Chun Fong who had relied on bogus documents and a false persona to enter Australia but who otherwise displayed a caring and nurturing attitude to her husband and family and who had not otherwise displayed any behaviour leading to the conclusion that she was not of good character:
"53. Chun Fong's conduct in relation to her entry and stay in Australia reveal a disposition to place her personal and now her husband's interests above her wider duty to the Australian community to abide by the law. That is a disposition which is not reflected in her day to day relationships but is clearly reflected when regard is had to the wider community.
54. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia's migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met. Fairness and equity are of such importance that it seems to me that I must conclude that the traits she has shown in seeking to avoid their application to her outweigh the good traits she shows as a loyal and caring wife to her husband and as a respectful and gentle person to her friends. Consequently, I find that, for the purposes of the Act, she is not of good character. I repeat what I said earlier and that is that this finding does not mean that she is of bad character."
Just as it did in the case of Chun Fong, the limited evidence regarding Mr Chen's record in working and avoiding trouble since he has been in Australia would not outweigh his using bogus documents.
When left in a state of uncertainty, as I am, it is necessary to analyse the decision under review. This was considered by Woodward J in McDonald v Director-General of Social Security (1984) 6 ALD 6 (Woodward, Northrop and Jenkinson JJ) in the context of the Tribunal's reviewing a decision to cancel an invalid pension. His Honour said:
"If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work. …" (page 11)
In this case, the decision to be reviewed is whether Mr Chen satisfies the character test. The first matter is to be analysed is whether s. 501(1) imposes an onus of proof upon Mr Chen. The general rule is that there is no such onus in the Tribunal but that legislation may require that a person establish a particular state of facts on which an administrator's decision is to be based (see McDonald v Director-General of Social Security at pages 9-12 and the discussion of it in Re O'Neill and Pharmacy Restructuring Authority (1993) 17 AAR 434 (Deputy President Forgie, and Dr Morley and Miss Brennan, Members). In providing that 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", s. 501(1) places an onus upon that person. That onus arises specifically from the manner in which the sub-section is worded. If there were no onus, it would provide that the Minister may refuse to grant a visa if not satisfied that the person passes the character test. By providing that the Minister may refuse if the person does not satisfy him that he or she passes the character test, the onus is clearly placed on the person under s. 501(1).
As I am left in a state of uncertainty and as Mr Chen has the burden of proving that he passes the character test, I must find that he has not done so. Therefore I must find that has not satisfied the character test.
The discretion
Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:
"…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." (Direction, paragraph 2.2)
The three primary considerations are:
"(a)the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children." (paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Chen's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of Mr Chen's conduct, I must have regard to:
"(c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.
(d)…
(e)…
(f)…
…" (paragraph 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Chen as mitigating factors (paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.
In considering the likelihood that any conduct will be repeated, the Direction states, in so far as it is relevant:
"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. In particular, the following factors will be relevant to the assessment:
(a)…
(b)…
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make."
The final matter to be considered in relation to the protection of the Australian community is that of general deterrence. The matters for consideration are:
"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)e 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
(b)the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes."
Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. 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. …" (paragraph 2.12)
In relation to the third primary consideration, the Minister stated that, in general terms, a child's best interests are served if he or she remains with its parents. Countervailing considerations to which he refers are not relevant in this case. The matters to which the Minister has directed a decision-maker's attention in considering the best interests of the child are:
"(a) the nature of the relationship between the child and the non-citizen;
(b)the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f) the impact of the non-citizen's prior conduct on the child;
(g) the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances." (paragraph 2.16)
Should the discretion be exercised in Mr Chen's case?
The state of the evidence also leads to some difficulty in my consideration of the way in which the discretion should be exercised. I have found that Mr Chen does not satisfy the character test because he has not met the onus of proof rather than made a positive finding that Mr Chen has proffered bogus documents and made misstatements to support his application. In view of there being uncertainty as to whether Mr Chen satisfies the character test, it follows that there is uncertainty as to whether his conduct, which was under scrutiny in relation to the character test, has been serious. If he did indeed engage in that conduct, there would be a strong argument that the discretion should be exercised against him. That would be so even though, on the evidence, he has behaved honestly and with propriety and has worked during the past five years in Australia. He has a brother in Australia but there is no evidence that he is close to him or to any other person in Australia.
As there is a state of uncertainty as to whether the documents are bogus, those matters outweigh the doubts that surround the documents and favour my concluding that the discretion should not be exercised against Mr Chen. His honesty and propriety militates against any suggestion that he will seek to engage in dishonest behaviour to gain a personal benefit. On the evidence, I find that he has worked during his time in Australia. He has demonstrated that he is a skilled worker being able to demonstrate the skills of an Australian Qualifications Framework Level 3 cook. Certainly, there is no evidence that he has any ties with Australia but, equally, the evidence of his past behaviour in Australia is that he will continue his life in the unobtrusive fashion he has in the past. There is no evidence on which I find that he will behave in a fashion from which the Australian community needs to be protected or that will disappoint the expectations of the Australian community. As to his child, there is no evidence as to his welfare one way or the other. At best, Mr Chen has seen him for only a maximum of five weeks in the past five years. What is in the interests of the child's welfare must remain a matter of conjecture. Having taken the primary considerations into account, however, I have concluded that the balance in exercising the discretion under s. 501 lies in favour of finding that Mr Chen's visa should not be refused on the basis of his character. That, of course, does not mean that he will necessarily be granted a visa for he must fulfil the remaining criteria for a 105 visa. Whether he does so or not is not a matter for the Tribunal.
For the reasons I have given, I:
1.set aside the decision of a delegate of the Minister dated 3 August, 2001; and
2.substitute a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501.
I certify that the seventy four preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ......................................................
Catherine Hutchins (Associate)Date of Hearing: 21 September, 2001
Date of Decision: 28 September, 2001
Advocate for the Applicant: Mr P. Ng
Migration Agent for the Applicant: Mr P. Ng
Counsel for the Respondent: Mr L. Leerdam
Solicitor for Respondent: Sparke Helmore
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