Confidential and Minister for Immigration and Citizenship
[2007] AATA 1288
•3 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1288
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0422
GENERAL ADMINISTRATIVE DIVISION ) Re Confidential Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date3 May 2007
PlaceSydney
Decision The decision under review is affirmed [sgd]
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex - refusal of subclass 136 skilled independent visa – applicant failed character test - involvement in past criminal conduct - conviction on four counts of knowingly using a false instrument – applicant of lesbian orientation - claimed coerced into criminal activities for fear of homosexuality being revealed - failure to disclose criminal convictions on visa application and incoming passenger card - Peoples Republic of China (PRC) – applicant a Falun Gong practitioner – fears of persecution –- migration program to be administered humanely but favour those who obey the law – primary consideration of community protection and expectations outweigh other considerations in this case - decision affirmed.
RELEVANT ACT/S
Migration Act 1958: ss 234, 501
Crimes Act 1900 (NSW): s 300
Administrative Appeals Tribunal Act 1975: s 35
CITATIONS
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Re Munoz and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 676
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
April 2007 Professor GD Walker, Deputy President Summary
1. On 19 February 2007, the applicant applied for review of a decision of a delegate of the minister rejecting her application for a skilled independent (class BN) migration visa on the ground that she is not of good character because of her past and present criminal and general conduct and she therefore falls within the scope of s 501(6)(c)(i) and (ii) of the Migration Act 1958 (the Act). He concluded that the applicant was unable to satisfy him that she passes the character test (G pp13-15).
2. The reasons included her conviction on four counts of violating s 300 of the Crimes Act 1900 (NSW) (the Crimes Act) by knowingly using a false instrument in an attempt to open a bank account for another person.
3. At the hearing, the applicant was represented by Mr Simon Jeans, solicitor, and the respondent was represented by Mr Tigiilagi Eteuati. 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 and two supporting witnesses gave oral evidence in person.
Issues
4. There are two issues in this case:
§Whether the applicant passes the character test, within the meaning of s 501(6)(c) and,
§If she does not satisfy the character test, whether the tribunal should exercise its discretion in favour of her not being refused a visa.
Chronology and basic facts
5. The applicant was born on 11 November 1982 in Shandong, People’s Republic of China, into what she called “a middle-class family”. Her father is a division chief in the Shandong province Department of Foreign Trade and Economic Corporation (sic) and her mother is a retired traditional Chinese medicine doctor. She is the only child of the family as a result of the Chinese government’s one-child policy.
6. The applicant was granted a subclass 560 student visa on 5 May 2000 (G p17) and first arrived in Australia on 21 May 2000. After completing a year of university foundation studies in science at St Paul’s International College in October 2001, she enrolled to study civil engineering at the University of New South Wales.
7. In mid-2003, she withdrew from engineering and enrolled at Sydney International College in a hospitality course in commercial cookery. After two years of study, she obtained a certificate from that college in commercial cookery and also has a number of related hospitality qualifications.
8. The applicant had been granted a subclass 573 visa on 4 March 2002, and a further one on 6 April 2002. That visa was cancelled, and later reinstated, in circumstances that are not relevant to this application. The applicant applied for a class BN subclass 136 skilled independent visa on 8 September 2005. It is from the refusal of that visa that the present application arises. The applicant applied on 6 March 2006 for a subclass 572 student further stay onshore visa, which was refused on 26 September 2006. She subsequently voluntarily approached the department and on 23 January 2007 was taken into detention. She is currently at Villawood Immigration Detention Centre.
9. The applicant applied for a protection visa on 9 February 2007, which was rejected by a delegate of the minister on 22 February 2007. An appeal to the Refugee Review Tribunal (RRT) against that refusal is currently pending.
10. The criminal conduct on which the respondent relies as a ground for concluding that the applicant does not pass the character test resulted in her conviction on 15 July 2005 at Burwood Local Court on four counts of using a false instrument with intent, contrarily to s 300 of the Crimes Act. She was sentenced to six months’ imprisonment concurrently on each count, those sentences being suspended on her entering into a bond to be of good behaviour for six months. The applicant had attempted to open a bank account on behalf of another woman, using false documents.
11. Further, the respondent claims that the applicant made several false and misleading statements in connection with her entry to, and stay in, Australia.
§On her application for a subclass 136 skilled-independent visa dated 9 August 2005, the applicant ticked the “No” box in answer to question 49, “Have you, or any other person included in this application, ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” (G p26). This was less than two months after her conviction at Burwood Local Court.
§With her application, the applicant provided a copy of an Australian Federal Police check dated 12 April 2005 that indicated that she had matters pending before Burwood Local Court (Exhibit R1, attachment A). By that time, however, the applicant had already been convicted of the offences. The department on 26 September 2005 asked the applicant for an updated AFP check and an explanation for her failure to disclose the pending matters (Exhibit R1, attachment B). The updated police check disclosed the convictions. The respondent contends that the applicant provided an old police check with her application and was untruthful about her criminal history in order to avoid refusal of her visa application.
§In her statutory declaration dated 24 March 2007, the applicant blamed her former migration agent for the untruthful answer to the question about criminal convictions. At the hearing the applicant said that although she had signed the application in two places, it had been completed by the agent and lodged without her ever seeing it.
§On her incoming passenger card, submitted when she entered Australia on 8 February 2006, the applicant answered “No” to the question “Do you have any criminal convictions?” (G p48). She gave inconsistent explanations for that misstatement.
§Until 6 February 2007, the applicant on a number of occasions had alleged that she was blackmailed into committing the offences for which she was convicted in 2005 by a man who threatened to inform her parents of her homosexuality and to harm her and her then partner if she failed to co-operate (G pp45, 52, 72). In her statutory declaration of 6 February 2007 in support of her protection visa application, the applicant alleged that she was blackmailed into committing the offences by a man who threatened to expose her as a practitioner of Falun Gong (Exhibit R1, attachment C).
12. The applicant did not dispute the facts relied on by the respondent but submitted that the misdeeds alleged resulted either from coercion, or misunderstanding or could otherwise be explained, in the manner outlined below.
13. At the hearing, Mr Jeans submitted that the protection visa decision record (Exhibit R1, attachment D) was confidential and for that reason inadmissible before this tribunal. As no provision making the material inadmissible was drawn to my attention, I overruled that objection, but at Mr Jeans’s request I made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting publication of the applicant’s name or of any information that would identify her or a relative of hers.
14. Although the usual practice in such cases is for the applicant to give his or her oral evidence first, Mr Jeans asked that the supporting witnesses be permitted to give their evidence before hers, because they had other commitments and the applicant’s evidence was likely to take some time. As the respondent consented, I permitted that to be done.
Relevant Law and Policy
15. Under s 501(1) of the Migration Act 1958 (the Act), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
…
For the purposes of this section, a person does not pass the character test if:
…
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; …
…
16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, 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.
17. 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.
Evidence of the applicant
18. In support of her application in this tribunal, the applicant relied inter alia on her statutory declaration dated 24 March 2007 (part of Exhibit A2). It is a lengthy document, but in essence it begins by describing how at the age of 13 she came to realise that she was of a lesbian orientation. As homosexual conduct was not favourably viewed in China, she did not reveal her preference to anyone. Her parents worried about her, seeing her obviously stressed, and advised her to practise Falun Gong (also known as Falun Dafa), which she began to do in 1996. In 1999, however, her aunt was tortured to death in prison because of her Falun Gong activities. The authorities claimed that she had died from an intentional dose of some toxic substance, but no-one in the family believed them.
19. Her parents decided to send the applicant abroad for further study and to enable her to find a better future. They used their contacts to obtain the student visa on which she came to Australia on 21 May 2000.
20. Her mother came to Australia and lived with her for three months in mid-2002. She joined a Falun Gong group that practised in a park in Ashfield. After she returned to China, her mother and father were monitored by the authorities, and finally her mother was detained in a labour camp and ill-treated for seven months between December 2002 and July 2003. To protect her parents in China from further persecution, the applicant kept her involvement with Falun Gong a secret from all but a few of her friends. For that reason she was not a very active practitioner.
21. She had co-operated with the police after her arrest on the criminal charges and had given them all the information she had about Ji Tong who, she had previously said, had blackmailed her into committing them. She had not seen him since but had heard that he had returned to China. She did not tell her parents about the conviction because it would be a burden to them on top of the suffering caused by their persecution for their Falun Gong activities. Further, her father has diabetes and high blood pressure and her mother was suffering from mental stress since being detained in the labour camp. Her parents had sent her approximately $13,000 in 2005 for her legal defence without asking why she needed so much more money than usual. After her detention on 23 January 2007, she did tell her parents about the conviction.
22. Following the convictions, she became more closely involved with Falun Gong after meeting a woman in May 2005 in Belmore Park who encouraged her to take the practice further. She said she applied for a protection visa on 9 February 2007 because, even if she was not very much involved in Falun Gong activities, the experiences of her aunt and her parents made her very concerned about what might happen to her if she had to return to live in China. In the past she had been able to visit China for periods of up to three months because she had not been staying very long, but she believed that if she lived there she also would be persecuted.
23. The applicant accepted that she had provided incorrect information on the incoming passenger card but said she had asked her current migration agent to correct the information for the official records. She had feared that she would not be allowed back into Australia and accepted responsibility “for this mistake”.
24. During her nearly seven years in Australia, she had accumulated considerable work experience, including in a bottle shop at Kingsford, a juice bar, as a restaurant cook, telemarketer and a contractor for Energy Australia. A friend introduced her to a chef named Kevin who owned a bar and restaurant, and if she is granted a visa he would employ her immediately as his chef. She also plans to complete her civil engineering studies at UNSW.
25. While in Australia she had been involved in relationships with Chinese girls. Between 2000 and 2006 she had been with Shuna Wu, who wrote a reference for her in March 2006. From mid-2006 she was in another relationship, with Teresa Li, but that had ceased.
26. At the hearing the applicant pointed out that she had pleaded guilty to the criminal charges on the first occasion she appeared in court. She accepted that she had to pay for what she had done and would not do it again. It had affected her job prospects and her whole life.
27. Early in 2005, she had approached a migration agent, David Yan Cao who was well known in Chinatown, for the purpose of applying for a skills visa. He had asked her to obtain an AFP certificate as soon as possible, and she had done so. His secretary had obtained her details from her, writing them on A4 paper, but she did not see the completed form, although she signed it twice on the last page, nor did she ever receive a copy. She did not obtain a new AFP certificate after the conviction, but her agent had told her that the department needed a new one because it was not aware of the court result.
28. The applicant admitted that she had not disclosed her convictions but explained that it would have been pointless to hide them. She also said she had not paid attention to the answer to question 49.
29. As regards the incoming passenger card, she said that she was sorry, but she had made a mistake, thinking the question related to terrorism convictions overseas and she had been concerned that she would be prevented from re-entering Australia. She later said that her statement in a statutory declaration that she had not deliberately concealed the conviction because she had thought it related to terrorism was not a lie, that she had thought that she might be refused entry, but upon thinking about it more deeply thought the question might relate to terrorism. She then conceded that she was merely rationalising and that in fact she had lied on the incoming passenger card.
30. As to the criminal convictions, she said she had met Ji Tong while they were working at the same supermarket. He asked her to do him a favour by opening a bank account for another woman using false identification, and said he would pay her $100 for doing so. When she declined, he threatened to tell her family that she was a lesbian, saying that he had her family’s telephone number. She told another witness that she thought he could have obtained their number from her diary in her handbag, on the occasions when he visited the apartment. He also threatened to harm her and her partner but did not threaten to expose her as a Falun Gong practitioner.
31. Mr Eteuati pointed out to the applicant that Ms Meng Wu (who had already given evidence), who knew the applicant at the time of the offences, had said that the applicant had told her that she had committed the offences on the spur of the moment and not because of blackmail but because she needed the money that Ji Tong offered her. The applicant replied that Ms Wu did not know in 2006 that she was a lesbian. She had told Ms Wu about that when she visited her in detention, and they had discussed its relationship to the bank account crimes.
32. The applicant was also asked about her involvement with Falun Gong. She said her parents had sent her to Australia because it would be safer, especially if she were to continue to practise Falun Gong. She had never been persecuted herself, but her parents had been arrested and detained for 10 days in 1999. She had been there at the time because it was shortly before her boarding school resumed.
33. She had not told the department about her persecution fears until after she was detained in January 2007, because the matter was very sensitive and she did not wish to endanger her parents. She admitted saying that for a period of a couple of months she had distributed pamphlets and a newspaper in Belmore Park that described Chinese government persecution of Falun Gong practitioners. She had started in May 2005 and worked at it about twice a week until she was detained. She had not raised her Falun Gong associations with the department until after she was detained because she was afraid that Chinese government spies would report her associations and that her parents would suffer. She preferred to find another way of obtaining permanent residency. After she was detained, however, she had told the truth, having learned that a confidentiality law would protect her parents. She denied that by distributing pamphlets in Belmore Park she had risked exposure, adding that she did not think about exposure at that time.
34. The applicant denied ever having said that Ji Tong had threatened to expose her as a Falun Gong practitioner. The statement to the contrary in her statutory declaration of 6 February 2007 in connection with her protection visa was the result of a misunderstanding by her then migration agent, Jill Vidler, who had written out the declaration for her to sign.
35. The applicant said she had returned to China three times, once for a few months at the end of 2001 and once at the end of 2002, and then for about three weeks in early 2006. She had not been persecuted on any of those three occasions. Asked why she had not mentioned her returns to China in her earlier statements, she replied, unresponsively, that on the first two occasions especially, she needed to see her parents. It was pointed out to her that she had returned to China for two months less than a year after she had arrived, but her parents had apparently not opposed the trip out of fear that she might be persecuted. She explained that they had not opposed the visit because her boarding school was closed at the relevant time.
Applicant’s supporting witnesses
36. Mrs Veronica Spasaro related (letter of 3 April 2007, part of Exhibit A2) that she met the applicant in mid-February 2007 on one of her regular visits to Villawood to assist detainees. She had been struck by the applicant’s willingness to act as a volunteer interpreter and in any other way she could. She had expressed regret for the offences in relation to the bank account and for the false statement on her incoming passenger card.
37. Mrs Spasaro had formed the impression that the applicant had learned a great deal from all that had happened and considered that she merited a second chance at continuing her life and her studies in Australia. She believed the practice of Falun Gong had been beneficial to the applicant. After she had known the applicant for several weeks, the applicant asked her to write a letter on her behalf. Mrs Spasaro asked her for a précis on which to base the letter, and the applicant had described how her parents had introduced her to Falun Gong because of the emotional problems she was having as a teenager. Over her four or five years of involvement at Villawood, Mrs Spasaro has written between 150 and 250 letters of support for detainees. A few of those relate to character issues, but not many, because most of the appeals go to the RRT and have less focus on character.
38. The applicant had mentioned, after Mrs Spasaro had asked her, that her visa had been refused because of the criminal offences. A friend she knew had threatened to tell her parents that she was gay, and as he visited her home regularly, he could have obtained her parents’ telephone number from her diary, which was left around in the kitchen.
39. Mrs Spasaro did not recall when the matter of Falun Gong arose in conversation, but she had told the applicant that she had a strong case for a protection visa. The applicant had also asked her for a letter of support for the RRT.
40. Ms Meng Wu related in her statutory declaration of 28 March 2007 (part of Exhibit A2) that she had met the applicant in late 2002 through a mutual friend and they had kept in touch ever since. They used to meet at parties, or go out together with the applicant’s partner. They would see each other about every two weeks and would be in contact on the internet almost every night. The applicant had not told her about any problems she had over her Falun Gong practice, but said that was probably because she was not interested in it.
41. Ms Wu did not recall when the applicant had told her about the criminal case. The applicant had also told Ms Wu about the wrong answer on the incoming passenger card. Nevertheless, Ms Wu believed the applicant was still a good person and her knowledge of the contraventions had not changed her opinion. She was also aware that the applicant practises Falun Gong.
42. At the hearing Ms Wu said they had become close friends and that the applicant had told her about the criminal offences in about 2006, but she was not sure when. Ms Wu had not discussed Falun Gong with the applicant because she was not a religious person herself and was not interested even in semi-religious matters.
43. The applicant had told her that she regretted the criminal offences but had committed them out of “greed” on the spur of the moment and without thinking about the potential aftermath. The episode resulted from her being short of money at the time.
44. At that point the interpreter explained that the word Ms Wu had used could be translated either as “greed” or as something more like “an interest”. After some discussion with the witness he concluded that she did not mean greed but something more along the lines of interest, in the sense of gain.
45. Mr Yang Yun Feng in his statutory declaration of 3 April 2007 stated that he had met the applicant in the Villawood Detention Centre, where he was also detained at the time. He had participated in Falun Gong since 2003, and had practised it with the applicant at the detention centre, where they frequently discussed it. In his view she was a long-term practitioner because of her knowledge of the five sets of exercises and of Falun Dafa and psychology. He thought she would face repression if she were to return to China.
46. At the hearing he said they also discussed other matters, because they came from the same town in China.
47. The applicant also relied on letters (part of Exhibit A2) from Ms Frances Milne, secretary of the Balmain Uniting Church, and Mr John L Fry, who conducts a detainee education program at Villawood.
48. Ms Milne wrote that the applicant had been of invaluable assistance to her and other community volunteers who visit Villawood, with her very proficient English language skills and constant willingness to act as an interpreter. She believed the high success rate of Chinese applicants was in part due to the applicant’s efforts. She considered the applicant a sensitive and compassionate young woman and thought it almost impossible to contemplate the desperation of a young student in a strange country, away from her family and friends, aware of the persecution of her mother and coming to terms with her own homosexuality.
49. Mr Fry wrote that while he had known the applicant only for a short time, he viewed her as contrite and as offering an unconditional apology. He said that she has a friendly, cheerful personality and is well regarded by her fellow detainees and visitors alike. She is intelligent and hardworking and readily helps her fellow Chinese detainees through her English language proficiency. He though she would make a worthy contribution to Australian society, whether in the hospitality industry or by completing her civil engineering studies. She was an inherently decent, moral person with many impressive qualities who had learned many valuable lessons through her past experiences.
Some difficulties in the applicant’s evidence
50. The applicant’s evidence contains significant discrepancies and contradictions on material matters. Here are some of them:
§In 2006, the applicant said that the main reason she came to Australia was that she could have a brighter future, particularly in view of her lesbian orientation (G pp46, 54). At the hearing, however, she said that her parents had sent her to Australia because it was safer for a Falun Gong practitioner. While the two are not incompatible, they cannot both be the main reason.
§Until 2007, the applicant claimed that she committed the offences for which she was convicted in 2005 because a seeming friend of hers named Ji Tong had blackmailed her into it by threatening to tell her parents that she was a lesbian (G pp45, 52). She told Mrs Spasaro that he could have obtained her parents’ telephone number from her diary, which would have been in the kitchen when he visited from time to time. That in itself is not an inherently probable hypothesis. When she applied for her protection visa, she swore in the statutory declaration of 6 February 2007 (Exhibit R1, attachment C) that she had been blackmailed into the offences by a Chinese student who threatened to denounce her as a Falun Gong practitioner. “I gave his name to the police in Sydney and I believe he has returned to PRC. My parents get anonymous phone calls and I believe this man may be responsible”, she stated. Lesbianism was not mentioned at all. Mr Jeans submitted that the passage in attachment C resulted from a confusion, on the part of her then solicitor and migration agent, between two separate incidents. That is unlikely because the whole substance of the declaration is the applicant’s involvement with Falun Gong, and the reference to the threat is not a mere passing mention but a significant part of the declaration that goes into some detail about the threat and its results. Her change of story on this point is more likely to have been a conscious choice on the basis that an association with Falun Gong might make a stronger case for a protection visa. At the hearing the applicant reverted to the lesbianism version.
§A misunderstanding between Ms Vidler and the applicant is unlikely also because of the applicant’s excellent English skills. Besides, the declaration itself notes that there was an interpreter in attendance.
§Ms Meng Wu, a close friend of the applicant’s since 2002 and the only witness who knew her at the time of the offences, said at the hearing that the offences did not result from any threat to expose her either as a lesbian or as a Falun Gong practitioner, but were committed on the spur of the moment because the applicant was short of money at the time. When asked about that evidence, the applicant said that Meng Wu did not know she was a lesbian until she twice visited her in detention in 2007. The applicant had then told her about it and they had discussed its connection with the criminal offences. That is improbable. If such discussions had taken place, one would expect that Meng Wu would have mentioned the matter at the hearing, but she did not. When clarification on that point was sought, she stood by her evidence that the offences were committed for money on the spur of the moment.
§The applicant’s explanation for Meng Wu’s evidence is implausible also because the appellant herself had consistently maintained that in Australia she never made any attempt to conceal her sexual orientation (G pp44, 52). Two other friends who lodged statements in her support were well aware of it (G pp63, 67) and, on her own evidence, Ji Tong also knew about it.
§When she was asked if she had failed to disclose her criminal convictions in response to question 49 on her skills visa application (G p26), she replied that she had not, because it would be pointless to hide them. That, of course, would be a reason for disclosing them, not for failing to disclose them. In any event, it would not be pointless. As she had given her agent a police certificate that showed no convictions, she might well have thought that answering “no” to question 49 might improve her application’s prospects of success, if the department failed to pursue the matter further. She blames her then migration agent for the misstatement, but as she had given the agent an AFP certificate showing no convictions, the agent could well have thought that at that time she had no convictions to report. It is noticeable that she does not say that she told the agent she had criminal convictions. The applicant is responsible for any misstatements by her agent, but in any event she had special reasons for being careful because she already had one experience of visa cancellation. The fact that she later ticked the “No” box in reply to the same question on her incoming passenger card, when no migration agent was involved, makes her explanation still more implausible.
§In response to question 17 on the skills visa application form, the applicant failed to disclose her de facto relationship with Shuna Wu (G pp14, 20). Their relationship began in 2001 and endured until 2006 (applicant’s statutory declaration 24 March 2007, para 37). Mr Jeans submitted that the misstatement was irrelevant because in an application for a class 136 visa there is no provision for interdependent relationships such as is available under other categories of visa such as class 310. Be that as it may, the question did not ask about interdependent relationships but about de facto relationships, and clearly called for an answer. Further, the applicant relied strongly on having “found a girl that I can stay with for my whole life” (G p51) as a ground for permanent residency and supplied a statutory declaration by her then partner Shuna Wu in support of her skills visa application (G pp59-60). While little may have turned on that question in relation to the particular application, the false answer does not enhance the applicant’s credibility.
§The applicant has given conflicting explanations for the false answer on her incoming passenger card (G p48). In earlier statements she said it was a “mistake”, that when she read the question she “instantly thought that it was asking for conviction [sic] in overseas country because of the issue of terrorism” (G pp7, 50, 56), and “did not relate it to my incident of 2005” (G p56). In her statutory declaration of 24 March 2007, she stated that “I did not declare the criminal conviction because I was worried that I would not be allowed back into Australia” (para 32). At the hearing she initially offered the same explanation, then later said that her first thought was that she would be refused entry, but on thinking about it more deeply concluded that it related to terrorism, although she admitted that terrorism was not mentioned on the card. Ultimately she conceded that her main concern was re-entry and admitted that she had lied.
§The applicant did not claim to fear persecution for being a Falun Gong practitioner until after she was detained in January 2007. There is no mention of it in her long statement of 14 March 2006 (G pp50-55) or her statutory declaration of the same date (G pp56-57), or in her long undated statement of early 2006 (G pp44-47). Mr Jeans argued that she did not mention that concern earlier because it was not relevant when she was not at that time applying for a protection visa. But the statements include detailed accounts of her background, and if Falun Gong was a part of her life and a reason for fear, one would have expected it to be mentioned.
§The applicant said she had not previously mentioned the Falun Gong issue because she feared that Chinese government spies would report back to China about it and her parents could be further persecuted. Yet she claimed to have handed out pamphlets and newspapers twice a week in Belmore Park, near Chinatown, over a two-month period in 2005. The material she distributed criticised the Chinese government, specifically over the persecution of Falun Gong practitioners. She endeavoured to explain that by saying that she did not think about exposure at that time, which is hard to reconcile with her expressed concerns for her parents’ safety.
§Further, in her 14 March 2006 statement she claimed to be a Buddhist, while not mentioning Falun Gong (G p54). Her then partner Shuna Wu made a statutory declaration on 14 March 2006 in which she stated that the applicant “has never lie [sic] to me because of her religion. She is a very devout Buddhist and she goes to temple to repent once a month” (G p59). Again, no mention of Falun Gong. Meng Wu was vague about the applicant’s Falun Gong activities. At the hearing, Mr Feng confirmed having seen the applicant practising Falun Gong in Villawood, but there is no corroboration relating to any earlier time. Further, there is an account of her background in her pre-sentence report of 30 June 2005, but no mention of Falun Gong. While there appears to be no inherent inconsistency between being a Buddhist and practising Falun Gong, if Falun Gong was the main reason, or a significant reason, for her coming to Australia, one would expect her to have mentioned it earlier. It is more likely that she took up the Falun Gong claim for the purposes of her protection visa because the PRC authorities accept Buddhism but persecute Falun Gong.
§The applicant does not give the name or any other details about the woman who she says persuaded her to be more active in Falun Gong, in May 2005. While reluctance to give a name could be explicable, she did not indicate that she ever knew the woman’s name or anything else about her. Given that the woman is claimed to have had a major influence on the applicant’s life, that leaves the uncorroborated account looking less than cogent.
§In her earlier statements she also did not mention that she had returned to China three times between 2000 and 2006. The first visit was less than a year after her initial arrival and, like the second visit, lasted for a couple of months. The 2006 visit was for three weeks. Asked why she had not previously mentioned those visits, she replied that on the first two occasions she needed to see her parents and the third visit was only for three weeks. Asked why, if she feared persecution because of her Falun Gong associations, she had returned at all, she replied only that she had not seen her parents for a long time and her mother was suffering from a heart problem.
§The delegate’s reasons dated 22 February 2007 for rejecting her protection visa application contain some pertinent observations:
…
I consider that the claims provided by the applicant are sparse, lacking in detail and coherency and are quite vague. The applicant has also provided no evidence to support any of her claims. The applicant has provided no clear time frame for any of her claimed activities including the circumstances of her involvement in Falun Gong. The applicant has provided no verifiable detail or substantiation of her claimed association with and active involvement in Falun Gong practices in the PRC. The applicant has provided no verifiable information to indicate that she has been practising Falun Gong since her arrival in Australia or that she has been involved in any activities that might be viewed as anti government by the PRC authorities.
The applicant has not indicated the location of the place she claims her mother was detained at and brainwashed or any of the circumstances relating to the incidences of harm she claims to have been exposed to. The applicant has not explained to my satisfaction why her mother would have chosen to return to the PRC in 2002 given the claimed repression that she has been subjected to by the PRC authorities and in view of the applicant’s claims I also do not find plausible her reasons for returning to the PRC on a number of occasions.
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… I also note that the applicant has not indicated that she had experienced any difficulties at any time entering and exiting the PRC including on the last occasion in February 2006.
I do not accept the applicant’s claims that she chose not to make known her fears and to apply for protection until after her detention because she was concerned that her situation would become known to the network of 1000 PRC spies in Australia. In her earlier claims the applicant indicated that she sometimes practised with others in Belmore Park. There is an inherent inconsistency and unexplained contradiction in these claims. If the applicant was aware of so much surveillance taking place, why would she choose to expose herself to public scrutiny.
I note that the applicant was not reluctant to make applications for other visas in Australia and did not appear to have held any concerns about her circumstances being made available to PRC spies in the Australian community. On the contrary I conclude that the applicant chose to lodge an application for Protection because this was the only visa class still legally available to her to make an application to prolong her stay in Australia. I also note that the applicant has recently decided to pursue a review of the decision to refuse her a Skilled Migration visa.
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51. The applicant’s evidence contains so many inconsistencies, changes, contradictions and implausibilities as to make it impossible to regard her as a reliable witness on any contentious issue.
Applicant’s submissions
52. The applicant did not dispute the criminal convictions, but submitted that the false statement in the incoming passenger card could not have been viewed as highly serious because no criminal prosecution had been launched in respect of it. The applicant had given the incorrect answer because she feared that if she had disclosed her criminal convictions on arrival, she would have been refused entry.
53. The failure to declare the criminal convictions in response to question 49 on the skills visa application form was unsubstantiated, as the applicant had not completed the form, although she did not check it before it was lodged. The AFP certificate she had submitted showed that charges were pending and in due course she had lodged a second certificate that made full disclosure.
54. The statutory declaration (attachment C) had been prepared in a hurry on a day when the applicant was unwell. The apparent change of story contained in it resulted from confusion on the part of the applicant’s then migration agent between two separate issues, the applicant’s lesbianism and her involvement with Falun Gong. The applicant’s submissions in relation to the non-disclosure of the de facto relationship have been referred to above.
55. The applicant had been granted several other visas at earlier times during her stay in Australia and it was not suggested that any of the applications contained false information. She had also worked as an employee in several businesses and in some of them she had been responsible for handling money. She should be taken to have passed the character test.
56. As regards the exercise of the discretion, it was significant that she received a lighter sentence for her offences under s 300 of the Crimes Act than the maximum of 10 years. It was unlikely that she would re-offend, because she had honoured the six months bond imposed and no new offences had been committed. She had pursued her education and had successfully completed a qualification. She does voluntary work willingly and is remorseful over her contraventions.
57. Her friend Meng Wu had said that she is of good character, despite the offences. She had useful qualifications and could contribute to the Australian community in the future. She had been reluctant to tell her parents about her convictions because they were suffering from ill health.
58. In the application of the discretion, Australia’s international obligations were to be considered, Mr Jeans argued. The applicant had been a Falun Gong practitioner since the age of 14 and found that it helped her. The extracts from human rights reports showed that the PRC was severely persecuting Falun Gong, and according to the United Nations 66 percent of all torture perpetrated in China was against Falun Gong members. The applicant could not be expected to cease practising it because that would attack her beliefs. Her family had suffered because of their association with the movement, and there was a real chance that she would suffer persecution also, as that factor was explained in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. She had not raised her association with Falun Gong earlier in her dealings with the department because it was not relevant to her student or skills visa applications. If there is a real chance of persecution, paragraph 2.21 of Direction No 21 requires that there should be no balancing of other factors if refusal or cancellation would amount to refoulement.
59. The applicant’s evidence at the hearing had not been vague, it was honest and accurate. She answered without hesitation and admitted that she had lied.
Application of the Law and Findings of Fact
60. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(i) and (ii), the applicant passes the character test having regard to her 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) AAR 192, the Tribunal said, at paragraph 37:
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).
61. The many good qualities a person may possess 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, 781).
62. 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).
63. 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 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 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.
64. As regards s 501(6)(c)(i), the person’s past and present criminal conduct, the tribunal should take into account the nature and severity of the offences, when they were committed, the applicant’s subsequent record and any mitigating circumstances such as may appear from sentencing comments or parole reports.
65. 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)).
66. 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.
67. I find that the applicant was convicted of the four counts under s 300 of the Crimes Act as alleged, there are no mitigating circumstances other than her pleas of guilty, as I also find that the applicant was not coerced or blackmailed into committing the offences by a person threatening to expose her as a lesbian or as a Falun Gong practitioner. There are no sentencing remarks available from the magistrate, but the fact that a custodial sentence, even though suspended, was imposed for a first offence shows that the local court took a serious view of the charges.
68. The applicant admitted, and I so find, that she knowingly made a false and misleading material statement in answer to question 49 in her application for a skills visa. Such an offence may constitute an offence under s 234 of the Act, making the offender liable to imprisonment for up to 10 years. The applicant admits signing the form in two places but says that the agent completed it for her and that she did not receive a copy of the completed form as lodged. She is responsible for the conduct of her migration agent (Re Munoz and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 676, at para 26). Further, the fact that she supplied an old AFP certificate showing no convictions, even though she had by then been convicted, tends to show that she was aware of the misstatement. On all the evidence I am satisfied that she knowingly made a statement that was false or misleading in a material particular.
69. I am also satisfied, as she eventually admitted, that she knowingly gave a false and misleading answer on her incoming passenger card. That also prima facie constitutes a breach of s 234.
70. The character evidence the applicant adduced at the hearing was based on relatively recent acquaintance, except that of Meng Wu, whose evidence about the applicant’s Falun Gong involvement was vague and contradicted the applicant’s claim to have been blackmailed into committing the offences over the bank account. The applicant has had no convictions since 2005 and complied with the conditions of her 6-month bond. Mr Jeans submitted that her practice of Falun Gong, which she said helped her psychologically and emotionally, counted in her favour. I accept that, but consider that it carries less significance than her overt acts. The same applies to the evidence of Mrs Spasaro, Ms Milne and Mr Fry.
71. The applicant’s basic record may not be so heinous that it could not be offset by unambiguous evidence of comprehensive rehabilitation. But, apart from her voluntary efforts as an interpreter at Villawood, there is little evidence of recent good conduct indicating that her character may have reformed, and indeed her numerous attempts to mislead the tribunal in her evidence at the hearing, as noted above, strongly point to the contrary. Her expressions of regret must therefore be viewed as largely tactical. There is no evidence that the applicant has committed any other types of offences in Australia or China, but her record of migration law violations is serious in itself, and the applicant’s character in a migration sense is central to these proceedings.
72. On the basis of all the evidence I find that the applicant does not pass the character test by reason of her past and present criminal and general conduct.
73. Having so decided, I must then consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to the 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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74. 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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75. 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.
76. 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 2.5(c), general deterrence, “whether visa refusal or cancellation may prevent or discourage similar conduct”.
Protection of the Australian Community
77. 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 “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 applicant has made false or misleading statements in connection with entry or stay in Australia. She continued to do so in her evidence at the hearing. It is clear that the applicant is a person who will say or sign anything in order to obtain a benefit or avoid a detriment. In my view her conduct must be viewed as very serious. The offences against s 300 of the Crimes Act are also serious. They involve attempted identity fraud in circumstances giving rise to a strong suspicion that the account was to be used for criminal purposes. As an intelligent person, the applicant must have been well aware of that.
78. The next issue for the tribunal to consider is the risk of recidivism. The applicant submitted that as she had co-operated with the police, honoured her six months’ bond, expressed remorse for her offences and earned vocational qualifications, there was little likelihood that she would re-offend. The respondent submits that the applicant has demonstrated a willingness to disregard Australian laws, and in particular the Australian migration system, and that there is a considerable risk the applicant will continue to act unlawfully and dishonestly if she is permitted to remain in Australia. As was pointed out above, her attempts to mislead the tribunal in her evidence does not suggest that she is rehabilitated and her professions of regret and remorse must be treated with some reserve. Her regret appears to relate more to the consequences of her actions than to the actions themselves. While it is unlikely she would again attempt to infringe s 300 of the Crimes Act, there is a risk that she would again re-offend in order to obtain a benefit in some other way.
79. 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 delegate noted that “The Chinese community in Australia is relatively close-knit and the outcome of decisions such as these are often passed around within the community” (G p14).
80. Mr Jeans 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 an observation well known to parents, teachers, managers and most other members of the community. 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. Granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law.
Expectations of the Australian Community
81. 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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82. A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552). That principle is implicitly confirmed by international human rights treaties. For example, the International Convention on Civil and Political rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.1). It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).
83. In my view the community expects that the migration program will be administered humanely but 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. On the evidence in the present case I consider that community expectations weigh against the grant of a visa to the applicant who has engaged in breaches of the criminal law and abuse of the migration system.
The Best Interests of the Child
84. There is no child whose interests need to be considered in this case.
Other considerations
85. 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 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.
86. The applicant’s family and all of her other relatives are still living in China and accordingly their lives would not be disrupted if the applicant were refused a visa. There is some evidence of rehabilitation, but as was noted above it is insufficient to warrant being given significant weight. The main compassionate circumstance relevant to the applicant’s case arises out of her claim that she is a Falun Gong practitioner who would face discrimination and persecution in China. That is considered below.
87. None of the other considerations are relevant to this application.
Other international obligations
88. There is little doubt that Falun Gong practitioners in the People’s Republic of China have since 1999 faced arrest, detention and imprisonment, and there have been credible reports of deaths resulting from torture and abuse. Practitioners who refuse to recant from their beliefs are sometimes subjected to harsh treatment in prisons, “re-education” through labour camps and extra-judicial “legal education” centres, while some who have recanted have returned from detention (Exhibit A3).
89. Even more alarming are the documented reports that government institutions and employees of the PRC have been harvesting organs from live Falun Gong practitioners, killing the practitioners in the process. The applicant tendered a lengthy report by David Matas, a human rights lawyer based in Winnipeg, and David Kilgour, a former member of the Canadian parliament, a former secretary of state for the Asia-Pacific region, and a former crown prosecutor. In their 2006 report titled Report into Allegations of Organ Harvesting of Falun Gong Practitioners in China prepared for the Coalition to Investigate the Persecution of the Falun Gong in China, a non-government organisation based in Washington DC and Ottawa, the authors concluded that there have been, and continue to be today, large scale organ seizures from unwilling Falun Gong practitioners.
90. They concluded that the PRC government and its agencies in numerous parts of the country, in particular hospitals but also detention centres and “people’s courts”, since 1999 have put to death a large but unknown number of Falun Gong prisoners of conscience. Their vital organs, including hearts, kidneys, livers and corneas, were virtually simultaneously seized involuntarily for sale at high prices, sometimes to foreigners, who normally face long waits for voluntary donations of such organs in their home countries (pages 41-42, part Exhibit A2).
91. The evidence before this tribunal corroborates the applicant as having practised Falun Gong in Villawood since February 2007. As regards the time before that, the applicant says she has been practising it since her mid-teens. But in her statement of 24 March 2007, she said that because of her concern for her parents in China, “I am not a very active practitioner as the member of a group, but it still is a pleasure that I have the freedom to believe in Falun Gong” (para 15). She went on to state that, “I believe that since I am a Falun Gong practitioner, even if I was not very much involved in Falun Gong activities, when I looked at my parents and aunts experiences, I became very concerned if I had to return to China and live there” (para 30).
92. For the reasons given above, I do not accept the applicant’s evidence that she is a long-term Falun Gong practitioner, or that her aunt and parents were persecuted in China because of their own associations with it. If it is true that the applicant became more active in the movement after May 2005, it is more likely to have been because she was seeking to lay the foundation for a protection visa claim on that basis.
93. I do not think the applicant has a well-founded fear of persecution in China, and I note that the minister’s delegate in his decision of 22 February 2007 took the same view. If on appeal the RRT reaches a different conclusion, the applicant will be granted a protection visa. In the meantime this tribunal has no power to review the delegate’s finding on that issue, and his decision must be taken to have settled the point unless and until it is set aside by the RRT.
94. In my view the primary considerations of community protection and expectations outweigh the other considerations in this case. The decision under review must be affirmed.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President.
Signed: ......................[sgd].......................................
Renee Wallace, AssociateDate of Hearing 10 and 11 April 2007
Date of Decision April 2007Solicitor for the Applicant Mr Simon Jeans, Simon Jeans & Associates
Solicitor for the Respondent Mr Tigiilagi Eteuati, Clayton Utz Lawyers
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Refusal of Visa
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Character Test
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Criminal Conduct
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Falun Gong
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Persecution
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