Fang and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 1195
•20 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1195
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/188
GENERAL ADMINISTRATIVE DIVISION )
Re Shi Hong FANG
Applicant
And Minister For Immigration And Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr J Block, Deputy President
Date20 November 2002
PlaceSydney
Decision The decision under review is affirmed.
[SGD] Mr J Block
Deputy President
CATCHWORDS
Immigration – Spouse Visa – Visa Applicant received visitor's visa on basis of bogus persona supported by bogus documentation – Visa Applicant maintained persona on subsequent visa applications – character test - Visa Applicant not of good character - primary considerations under Direction 21- protection of the Australian community – the expectations of the Australian community - child of the marriage and an unborn child of the marriage - discretion under Part 2 of Direction 21
LEGISLATION
Migration Act 1958 sections 499, 501
CASES
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
Moengangongo and Minister for Immigration and Multicultural Affairs [2001] AATA 74
Almaza Said-Chidiac and Department of Immigration (AAT 12936, 1 June 1998)
Re Medyanto and Minister for Immigration and Multicultural Affairs (1997) 49 ALD 731
Wan and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 217
REASONS FOR DECISION
20 November 2002 Mr J Block, Deputy President
PART A PRELIMINARY AND BACKGROUND
The decision under review is the refusal (dated 3 January 2002) by a delegate of the Minister of Immigration and Multicultural Affairs (as he then was) of an application for a spouse visa by Chang Can Lin ("the Visa Applicant"); his wife, who is the Applicant, sponsored that application. (The last paragraph of the relevant decision by the Respondent's delegate which appears at T page 15, indicates that the refusal related both to a Class UF Subclass 309 Spouse (Provisional) Visa and a Class BC Subclass 100 Spouse (Migrant) Visa.)
The Applicant was represented by Mr Kerry Murphy of Craddock Murray Neumann, Solicitors, while the Respondent was represented by Mr Edward Palmisano of Blake Dawson Waldron, Solicitors.
(a) The Tribunal had before it the "T documents" and also the supplementary T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
Exhibit No. Description Date
A1 Statement of the Applicant 22 June 2002
A2 Statutory Declaration of the Applicant 23 September 2002
A3 Certificate by Dr Hugh Allen, Respiratory Sleep and General Paediatrician 1 May 2002
A4 Statement by the Visa Applicant 22 June 2002
A5 Statement by Peng Ying Ding, who is the Applicant's mother (and who is referred to in these reasons as the "Applicant's mother") 22 June 2002
A6 Statement by Kui Yuan Fang who is the Applicant's father (and who is referred to in these reasons as the "Applicant's father") 22 June 2002
A7 Visa application receipt
A8 Translation of Patient Record of the Shanghai Children's Hospital (Patrick Lin) 13 May 2001
A9 US State Department report of Human Rights Practices 2001, pages 1, 11, 12, 13
A10 Report by the US Committee for Refugees on China's One-Child Policy
A11 Report by the World Resources Institute on China; Water and Air Pollution
A12 Report by the World Resources Institute on Air Pollution and Health Effects 1998-1999
A13 Report by the World Resources Institute on Water, Pollution and Human Health in China
A14 U.S. Department of State report on China
A15 Print-out of a pregnancy test (Applicant) 9 September 2002
A16 Currency conversion chart
R1 Extracts from two documents tendered by the Respondent under the collective heading "Supplementary Relevant Documents"; one of those two documents is a report by the UK Home office 2001 on China (referred to as the "UK report") and a report on China in 2001 by the US Department of State (referred to as the "US report")
(b) The supplementary T documents are not numbered sequentially after the T documents; accordingly page references preceded by T refer to pages in the T documents while page references preceded by S refer to pages in the supplementary T documents.
(c) It may be noted that at the commencement of the hearing, Mr Murphy advised the Tribunal that he would be calling four witnesses and being the Applicant, the Visa Applicant and each of the Applicant's parents. He also advised the Tribunal (correctly in my view) that it was conceded that the Visa Applicant did not pass the character test.
By way of background and in order to set the scene, I commence by including a number of documents or extracts from documents.
(a) The Respondent's Statement of Facts and Contentions dated 12 August 2002 contains a helpful chronology. Clause 3 under the heading "Background", and also the subheading "Facts" reads as follows:
"BACKGROUND3.This is an application to review a decision of the Respondent's delegate made on 3 January 2002 to refuse to grant to the Visa Applicant a spouse visa. The decision to refuse to grant the visa was made on character grounds under Section 501 of the Migration Act 1958 ("the Act").
FACTS
DATE EVENT REFERENCE
22/01/69 Review Applicant born in PRC. 92S, 43T
30/12/73 Visa Applicant born in PRC. 40T, 67T, 72T, 75T
16/04/90 Review Applicant granted Australian citizenship. 43T, 59T,
78T
09/06/98 Visa Applicant entered Australia on a subclass 676 visitor visausing a false passport in the name of MAK Chi Keung.
Using this name he also obtained a driver's licence and 67T, 156T,
established a bank account. 158T, 71S31/08/98 Visa Applicant applied for a protection visa based
on fabricated claims of persecution using his false
identity. 25T, 1S20/10/98Protection visa application refused by a delegate of the
Minister. 28S, 30S
19/11/98 Visa Applicant lodged an application with the Refugee
Review Tribunal("RRT"). 38S
11/99 Review Applicant and Visa Applicant commenced living
together. 67S
15/03/00 RRT affirmed the delegate's decision to refuse the protectionvisa. 49S
11/05/00 Visa Applicant sought Ministerial intervention under s417
of the Act (by letter dated 10 April 2000). 33S
20/05/00 Review Applicant and Visa Applicant married. 57T, 69T
14/06/00 Visa Applicant was notified that on 5 June theRespondent had decided not to consider exercising
his discretionary power under s417. 37S, 64S19/06/00Visa Applicant makes a Statutory Declaration under a false identity. 98S
29/06/00 Visa Applicant and Review Applicant travelled to New
Zealand. 67S
30/06/00 Visa Applicant submitted an application for a spouse visa to
the Australian Consulate General in Auckland, New Zealand
with a false birth certificate. 67S07/07/00 Australian Consulate-General in New Zealand sent Visa
Applicant a letter notifying him that his visa application
had been referred to Hong Kong for processing. 117S25/07/00 Visa Applicant's agent notified the Respondent that
Visa Applicant wished to withdraw his application for
spouse visa. 118SVisa Applicant removed a page from his passport to conceal
a previous Australian visa. 132S
16/08/00 Visa Applicant departed New Zealand and attemptedto enter to Australia on an electronic travel authority
(visitor) visa. 127S
16/08/00 Visa Applicant's visa was cancelled on the basis thathe did not have a genuine intention to visit Australia
temporarily for tourism purposes. 123-137S17/08/00 Visa applicant admitted that his real identity is LIN Chang
Can. 134S
17/08/00 Visa Applicant returned to China. 156T
23/08/00 Letter from Australian Consulate General, Hong Kongconfirmed withdrawal of Visa Applicant's spouse visa
application. 120S12/12/00 Visa Applicant applied for a spouse visa at the
Australian High Commission, Shanghai, PRC. 38T
11/02/01 Child of Review Applicant and Visa Applicant born
in Shanghai, PRC and named Patrick LIN. 150T
9/04/01 Patrick LIN registered as an Australian Citizen by
Descent. 151T
27/09/01 Australian Visa Office, Shanghai notified Visa Applicant of
intention to refuse spouse visa under s501 of the Act. 156T
02/10/01 Visa Applicant wrote to Australian Visa Office, Shanghai
admitting he had used a false identity and bogus claims to
gain entry to and remain in Australia. 158T3/01/02 Visa Applicant's application for spouse visa refused for failing
to satisfy the character requirements under s501of the Act. 7T"
(b) The Respondent's Statement of Facts and Contentions also lists those actions by the Visa Applicant which caused the Respondent to conclude that, having regard to his past and present conduct, he is not of good character in accordance with section 501(6)(c)(ii) of the Migration Act 1958 ("the Act"). Clause 6 of that statement reads as follows:
"PART (a) - APPLICATION OF THE CHARACTER TEST
6.The Respondent contends that the Visa Applicant does not pass the character test because, having regard to his past and present general conduct, he is not of good character (s501(6)(c)(ii)), based on the following conduct:
(a)entering Australia using a false passport of a British National (Overseas) Hong Kong citizen in the name of MAK Chi Keung;
(b)assuming the identity of MAK Chi Keung and apparently using that identity in all facets of his life;
(c) lodging an application for a protection visa based on fabricated claims;
(d)lodging an application to the RRT for review of the decision of the delegate to refuse him a protection visa and maintaining the baseless refugee claims made to the Department;
(e)maintaining the baseless claims for refugee status to the Respondent in a letter applying for Ministerial intervention under s417 of the Act;
(f) overstaying his visa in Australia;
(g)lodging an application for a spouse visa using the false identity and a false birth certificate at the Australian Consulate General, Auckland, New Zealand;
(h)removing a page from his passport to conceal a previous Australian visa;
(i) attempting to re-enter Australia using the false identity; and
(j)taking actions to conceal the fact of his false identity including withdrawing his first spouse visa application."
(c) Exhibit A1 reads as follows:
"STATEMENT OF SHI HONG (LINDA) FANG
I, SHI HONG FANG of 3/50 Neridah Street Chatswood do solemnly and sincerely declare that:-
1.I was born in the Peoples Republic of China. I have one brother who lives in the PRC with my parents. I am also known as 'Linda Fang', and this is the English name I use in Australia.
2.I attended school in Shanghai and attended the Shanghai Medical University studying for a bachelor's degree in advanced nursing for two years from 1987 to 1989.
3.I worked as a secretary in Qing Dao for a chicken vaccine project from about September 1989 to April 1990.
4.I came to Australia at April 1990 and I was attending a language school in Melbourne. Between 1992 and 1993 I was attending the RMIT in Melbourne where I studied Medical Laboratory Science. I then attended Biomedical Science at UTS between 1993 and 1996 and obtained my bachelor degree.
5.In 1996 I was granted Australian citizenship. In about March 1997 I returned to China for some months and worked for a pharmaceutical company in Shen Zhen until about August 1998.
6.I returned to Australia in August 1998. Between September 1998 and December 1998 I was in USA on a holiday traveling with a friend.
7.I returned to Australia in about December 1998. From January 1999 until April 2000 I worked at Il Gianfornaio which is a chain bakery head office as a receptionist. From about April 2000 until June 2000 I was an administrative assistant with the Australian Water Association. From June 2000 to August 2000 I was in New Zealand.
8.I returned to China in September 2000 with my husband living in my parents house in Shanghai. My husband, my son and I spent some time in Shen Zhen when I had to renew my visa in Hong Kong, every three months.
9. I returned to Australia on 8 February 2002.
10.I have a brother in Shanghai whose name is Shi Dong Fang. He is 31 years old. He works in a logistics department for a car seat company, Yan Feng Johnson. His apartment has three bedrooms and he lives there with his family together my parents and my husband. My husband is trying to rent another place for us in Shen Zhen.
11.My father had a business in trading, import export and maintains his business interest as a director. He has retired from his government work in about 1998/1999. My mother used to work at Shanghai Volkswagen, after she had retired she worked for a travel agent, which is part of the Volkswagen group.
12.My son Patrick was born on 11 February 2001 in Shanghai. He is an Australian citizen. He was in hospital in Shanghai at December 2001. The nurses did not take proper care in giving him injections and at one stage he would knock off the needle in the vein as a young child is very active, was the third open needle and the only vein they could find left was in his forehead. They could not find any injection area for Patrick such as his forearm or foreleg. To avoid him spoiling the last needle by knocking it off, we did not go to sleep for three days to keep an eye on him. In that hospital unit, all the children had pneumonia and there was a high risk of infection.
13.The child next to Patrick had minor disease and spent 20 days undergoing treatment in hospital. The hospital asked for a further RMB 8,000.00 when he was allowed to go home but they only had RMB 5,000.00 that an aunt had to go and get money to pay and by the time she had returned the child had an intensive fever and was in intensive care. This is an example of the poor quality treatment that is available in Shanghai.
14.Patrick had to spend a night in intensive care in hospital. I was particularly worried about his treatment as a five year old from anther city out of Shanghai had pneumonia and for 26 days he was in hospital. The hospital where he was is famous hospital and there is only one other children's hospital which is considered any good. The doctors rarely explain the treatment and the building is quite old. Three days before Patrick had to go into hospital the Doctor called the specialist and we had to pay more money, on the basis that they were supposed to give him an x-ray, but this was not done. The second day he went to the x-ray and it proved he had pneumonia.
15.As my son is not a Chinese citizen and I am no longer a Chinese citizen, we will have to pay twice the price a Chinese national would have to pay. When my son was born, I was asked to pay double that a friend knew someone in the hospital and they made informal arrangements, so I did not have to pay the extra. I didn't put that my son was an Australian citizen on the hospital register, as they would have asked for more money.
16.It is not always possible to hide these facts from the authorities as they usually require identity documents and it would be a particular problem for ongoing medical and education. Education in China is more expensive for non-citizens. Immunisation services are free for locals however, foreigners have to pay.
17.China also has a one child policy and failure to comply with the policy means that parents face economic penalties, such as having to pay extra for health, education and local authority fine. Not only that, they could lose their jobs if they work in government invested companies. Such as the company my mother used work, if you have second child, then you have to leave the company. Both the company and yourself have to pay the fine to local authority.
18.If you register in a new city there is no free education and there is no rebate on health costs. If you are only temporarily in a city, you do not get exemptions from these fees then you must pay extra for health and education.
19.As a non-citizen, you have to pay to renew the visitor visa in China every three months. This costs HK$150.00 for the visa, however you can obtain an urgent visa for HK$250.00. It has to be paid for myself and for my son. Failure to pay the visa will result in a RMB100 fine per day by the time you leave Chinese custom.
20.My son has been receiving treatment for asthma as he may have asthma according to my doctor Dr Allen. I am worried about him living in the Chinese cities where the pollution is significantly higher than that of Australian cities.
21.I have lived in Australia for sometime and feel quite comfortable with the Australian way of life as it does not have the pressures and constraints living in China. I found that in Australia my son gets superior quality health care and his education possibilities are far better than that if you were living in China. In China he would be significantly disadvantaged as a non citizen. The friends that I had when I was studying have left China and are now living in Europe or other western countries. I have friends in Australia and a very few friends still living in China.
22.It is difficult living in the same property as my brother as there is often conflict living with him due to too many people living in a small premises. The conflict with my brother then causes conflict between my brother and my parents or with myself and my parents.
23My son Patrick is very close to his father, since my husband often was taking care of him in his first year. He fed him in bottles, changed his nappies, bathed him, and he was the only one could comfort him to sleep. After we had lived in Sydney for three months and came back to visit his father, Patrick could not recognize him and did not even want his father to carry him when he picked us up at airport. After a few days, Patrick recognised his father again, I suppose this is a natural bond and he loves to play with his father, he loves his wider shoulder to rest his head on and fall in sleep on his father's shoulder every night. He would look for daddy when daddy is away for sometime. And he follows him everywhere he goes. Patrick likes his father to feed him. Since he can say "daddy" and "mummy" and he started to understand the world now. He becomes more dependent on us. I really don't want to see the sadness Patrick has when he can not find his father around. He just keeps crying for a long time."
(d) Exhibit A3 (a certificate by Dr Allen dated 1 May 2002) reads as follows:
"Dear To Whom It May Concern,
Re: Patrick Lim, D.O.B.: 22 January, 1969
Diagnosis: Recurrent acute bronchitis or asthma.
Patrick is the son of Shi Hong Fang and he is now 18-months old and was born in China after an uncomplicated pregnancy. He was admitted to Hospital in Chang Hai with current lower respiratory tract infections, bronchopneumonia or asthma was diagnosed and he was treated with antibiotics. The family report that he had recurrent lower respiratory tract symptoms throughout his time in China, which resolved on his arrival in Australia four months ago. There has been no contact with TB. He had a BCG.
On examination he looks well, he is no in respiratory distress, is thriving and has no chest deformity.
Differential diagnosis includes frequent episodic asthma or recurrent acute bronchitis. I have recommended we give him a trial of Flixotide 1 puff twice a day while he is in China and will exclude immune deficiency and other chronic lung diseases if there is a deterioration when he comes back to China. His Mantoux test to exclude tuberculosis is negative.
I will review him on his return and this environment will be significantly better for him than the environment in Shanghai from his lung perspective."(e) Exhibit A4 reads as follows:
"STATEMENT OF CHANG CAN LIN
I, Chang Can Lin of Rm402, No 27 Lane 255 Meichuan Rd, Putuo District Shanghai, PR China do solemnly and sincerely declare that:-
1. I was born in the Peoples Republic of China in Fujian province.
2.I am very sorry that I paid someone to get me a passport in a false name and travel to Australia on that false document. I am also very sorry that I made a protection visa application in that false name and lodged an appeal to the Refugee Review Tribunal (RRT) in a false name. I also apologize for seeking the intervention of the Minister on Humanitarian Grounds under my false name. I apologize for lodging a spouse visa in New Zealand under a false name and trying to enter Australia again on that false name.
3.I understand that this was the wrong thing to do and I should not have done any of these things. I am now married and since I am having a son I believe that I am now more mature and responsible. I realize that my actions have caused significant problems for myself, my wife and son.
4.I did not tell my wife about my true name and identity until after I tried to enter Australia again on 16 June 2000. My wife was very upset by my lies to her about my name and identity. However, we realized that we were still very much in love and she forgave me for my wrongdoing. Since that time, my wife had a baby boy, Patrick.
5.My son is not a Chinese citizen and my wife is no longer a Chinese citizen. My son will have to pay twice the price a Chinese national would have to pay for education. Education in China is more expensive for non-citizens. Immunisation services are free for locals however, foreigners have to pay.
6.China also has a one child policy and failure to comply with the policy means that parents face economic penalties, such as having to pay extra for health, education and local authority fine. Not only that, they could lose their jobs if they work in government invested companies. In some work places, if you have second child, then you have to leave the company. Both the company and yourself have to pay the fine to a local authority.
7.If you register in a new city there is no free education and there is no rebate on health costs. If you are only temporarily in a city, you do not get exemptions from these fees then you must pay extra for health and education.
8.Non-citizens have to pay to renew their visitor visa in China every three months. This costs HK$150.00 for the visa, however you can obtain an urgent visa for HK$250.00. It has to be paid for my wife and for my son. Failure to pay the visa will result in a RMB100 fine per day by the time you leave China.
9.My son has been receiving treatment for asthma as he may have asthma according to his doctor Dr Allen. I am worried about him living in the Chinese cities where the pollution is significantly higher than that of Australian cities.
10.My son Patrick is very close to me because I was often taking care of him in his first year. I fed him in bottles, changed his nappies, bathed him, and I was the only one could comfort him to sleep. I missed him very much when he was in Sydney and I believe we have a very strong bond. I believe my son should be brought up in Australia as there he has much better access to health and educational services. If he had to stay in China, then he faces discrimination as a non citizen, and to become a citizen he has to forfeit his Australian citizenship. It would cause me great pain and suffering if I were forced to be separated from my son because I am unable to live in Australia.
11.This statement was read to me in Chinese and I agreed with its contents before I signed it."
PART B
THE CONDUCT OF THE VISA APPLICANT WHICH RESULTED IN AN ADVERSE CHARACTER FINDING
Towards the middle of 1998 the Visa Applicant went to Hong Kong where he acquired a false passport in the name of Mak Chi Keung (referred to in brief as "Mak").
Using his false passport, the Visa Applicant entered Australia on a visitor's visa, and using that false name and identity he obtained a driver's licence and established a bank account.
In August 1998 the Visa Applicant applied for a protection visa using his false identity; his claims as to persecution were entirely fabricated and fictitious. His claims are set out in S page 26 and S page 27, and reading as follows:
"Secondly my reason for a protection visa.
Having given up their residential right of Hong Kong, my father established his own business of trading in Guangxi and everything went smoothly in the first ten years and he become quite rich. However, things started to go wrong right after the "Tiananment Event" in 1989. The government started to tighten their political control and economic policy. My father was already the object of envy of many people, particularly his colleagues from past who still worked in the government getting low wages. Moreover, he had some bad marks from early 1970s that was considered his weakest point that could be attacked whenever the attacker thought it was necessary.
I will stop my fathers story here and turn to mine.
I started to work for New Asian Real Estate, Hong Kong in 1993 as an accountant when my father's company became a broker in properties selling and buying. In the early 1994, my father's company was very interested in selling some properties in South Guangxi, and persuaded New Asian Real Estate, Hong Kong to became buyer. Trusting my father's company, New Asian Real Estate, Hong Kong, however, appointed me to go to China and be in charge of the matter.
In the middle 1994, the deal was done between a Chinese company and my company under the help of my father's company. We paid 30% deposit which was 3 million Hong Kong Dollars under the guarantee of my father's company. The Chinese company was supposed to finish construction and hand the building to us before 1995, and our company was supposed to pay the rest 70% then.
But, in the end of 1994, I and my father were deadly shocked to hear that the Chinese company was bankrupted.
My father, who was 64 years old, tried his every means to get the deposit back and failed. He then went to all his connection for help and was turned down. Hopelessly, he asked my boss from Hong Kong to fly to China, and together they planned to find a way out.
The worse was to come. My boss and my father went to the local government to seek for justice. The government officer who was once my father's colleague and the one to put my father in the "most wanted" list told my boss that the government had nothing to do with their deal and could not really help them. He gave a hint that my father might have some under table thing to do with the bankrupt company. My boss took in every thing the officer said and started to suspect my father and me. We told him the story of my father and explain that my father was the object of envy of those old colleagues and that he was said it to destroy my father. But my boss did not believe us.
The New Asian Real Estate, Hong Kong went to court in 1996, not shooting the Chinese company but my father and me.
We attend the court and found out that the Chinese government are protecting the Hong Kong company not my father's company or me. Because my father has black marks in his history and so was regarded not honest, not to be trusted. The court decided that my father, me and the Chinese Company would pay back equally the lose of the Hong Kong company. I did not have any money to pay and I did not want to pay something I did not take. Therefore, I return to Hong Kong. But the Hong Kong company followed me wherever I went. They made sure that I would not be employed again and throated that if I could not pay the money back I would find myself lose one part of my body once a time.
Scared and desperately, I came to Australia. I wish the Australian government could consider my case and give me a protection visa so that the nightmare could be ended and I could live freely as a human being again."The protection visa having been refused, the Visa Applicant lodged an application for review with the Refugee Review Tribunal ("RRT"). The decision of the RRT (affirming the refusal of a protection visa) dated 15 March 2000 appears at S page 50 to S page 60. I include only that part of the findings of the RRT which commence with the second paragraph on S page 59 and ends with the second paragraph on S page 60 and reading as follows:
"The applicant fears returning to Hong Kong because the company he worked for encouraged by his father invested in a Chinese company which went bankrupt. As a result the company lost their deposit. The company sought recovery of the money in China. The court ordered the applicant, his father and the Chinese company to repay the deposit. The applicant claims when he returned to Hong Kong he was followed and received threats from the company to repay the deposit. The applicant claims he escaped to Australia.
The Tribunal found the applicant not to be a credible witness. In his initial application to the Department the applicant claimed he worked for the Hong Kong company during a particular period of time. At the hearing the applicant claimed he started at the Hong Kong company some months after he graduated from high school. Then he claimed he couldn't remember the exact date he started his employment because it was a long time ago and he was confused. Then he claimed he started work a few months after working in a specific industry first. In his initial application to the Department the applicant stated in which year he ceased his employment with the Hong Kong company. At the hearing the applicant at first he claimed he ceased his employment in a particular period of time and went to work for his father's Chinese company. Then he claimed he ceased his employment the month he left to come to Australia. There were also inconsistencies and changes to the applicant's story in relation to the threats he received from the Hong Kong company. In his initial application to the Department the applicant claimed when he returned to Hong Kong following the court order made by the mainland court he was followed wherever he went. At the hearing when the Tribunal asked where he was followed and threatened the applicant at first claimed he was threatened at his father's friend's house. When the Tribunal indicated that he had claimed was still employed at the Hong Kong company until recently the applicant claimed they started following him some years earlier following the bankruptcy. There were also changes and inconsistencies in the applicant's story as to what he did over a certain period. The applicant at first claimed he was unable to find a job. Then he claimed he could find jobs but couldn't keep them because people would harass him. When the Tribunal indicated his story was not credible given the changes and inconsistencies in his story the applicant started to laugh. The inconsistencies and changes to the applicant's story as to when he started and ceased his employment, when he was followed and what he did over a certain period indicate to the Tribunal that the applicant's claims are fabricated. The Tribunal also finds it implausible that the applicant claims he was followed and received threats to chop off parts of his body from a certain year onwards, yet he remained in the country living at the same address until just before he came to Australia.
The Tribunal finds applicant's claims are fabricated."
In April 2000 the Visa Applicant applied for the Respondent's intervention under section 417 of the Act.
The Respondent notified the Visa Applicant on 5 June 2000 that he would not intervene. The Visa Applicant (as Mak) and the Applicant were married on 20 May 2000, selected as the first anniversary of the date on which they met.
On 19 June 2000 the Visa Applicant made a statutory declaration in his false Mak identity.
In June 2000 the Visa Applicant submitted an application for a spouse visa in his false identity and using for this purpose a false birth certificate to the Australian Consulate-General in New Zealand.
In July 2000 the spouse visa application was withdrawn on instructions from the Applicant after the Visa Applicant was notified that it would not be dealt with in New Zealand and would be referred to Hong Kong for processing.
On 16 August 2000 the Visa Applicant attempted to land in Brisbane using an electronic visa obtained in New Zealand. Prior to landing in Brisbane, the Visa Applicant removed a page of his passport so as to conceal what the content of that page would have disclosed.
On 17 August 2000 the Visa Applicant (for the first time) told the immigration authorities that his real name was Chang Can Lin. He was detained by the authorities and sent to China. Although the Visa Applicant said that he had been deported Mr Murphy advised the Tribunal that he was removed under section 198 of the Act and that he was not deported under section 200 of the Act. I do not think that anything very much turns on this.
It will be noted then that the Visa Applicant committed numerous breaches of section 234 of the Act. The maximum penalty prescribed for breaches of section 234 of the Act is such that the offences must be regarded as serious, and having regard to the nature and scale of them and the period involved, very serious.
The witness statement of the Visa Applicant submitted as Exhibit A4 to the Tribunal speaks of repentance and contrition. In fact the Visa Applicant's evidence was that conduct of this sort is common-place in Luchien province (from which he comes) and is necessitated by the fact that to obtain passports and visas is difficult. The Visa Applicant's contrition, repeated on various occasions during his evidence, must on analysis and having regard to the context and the words used, be regarded rather as an expression of regret of the consequences, and being separation from his wife and son. There were also references in his evidence to his regret at the fact that he deceived his wife and her family; for reasons set out later in this decision, I am far from sure about the extent to which they were in fact so deceived.
The Visa Applicant in a letter to Mr David Haridemos, Vice Counsel Shanghai Office dated 2 October 2001 said, towards the bottom of the second page "all I did was silly and not responsible. Especially to my family and Australia. Sorry I was so young that time to make such mistakes. I would never do any of these again if I could turn back time. I did not realise those serious mistakes could cause harm to the country, later to hurt my family. All I can say now is Sorry."
(The Visa Applicant was in fact 25 years old when he first landed in Australia; he was in other words an adult who acquired a false passport and entered Australia under a false identity in order to make money.)The Visa Applicant said in his evidence that he borrowed money from family and friends to acquire the false passport, and that he came to Australia for financial reasons because he believed that he could earn more money in Australia. He said also that the persons who organised the false passport had represented to him that he could earn considerable sums in Australia. He said in his evidence that he believed that he had been cheated, although by whom and how was never made clear.
PART C
THE EVIDENCE OF THE APPLICANT
I commence with the evidence of the Applicant who had the assistance of an interpreter in the Mandarin language. However she soon demonstrated that she had no need whatever of an interpreter, being perfectly fluent in English.
The Visa Applicant was born in China in 1969. Her educational qualifications were set out in her first witness statement Exhibit A1. She had two years of advanced nursing study in China before she came to Australia. In Australia and having obtained a student visa, she first learned English (and in which, as I have said she is fluent) and then in 1992 and 1993 attended the Royal Melbourne Institute of Technology to study biomedical science.
The Applicant obtained a residence visa in 1994 and Australian citizenship in 1996. In that year, and having previously moved to Sydney she obtained a degree in science at the University of Technology.
Having completed her degree, the Applicant returned to China (in 1997) where she worked for a pharmaceutical company. Between September and December 1998 the Applicant travelled in the USA. She then returned to Australia where she worked for a bakery company. (She said that although her qualifications were in science, she did not, while in Melbourne obtain practical work in hospitals because she "didn't try hard enough", and that it was for this reason that she moved away from jobs with a scientific bias.)
Having left the bakery (in April 2000) she took up a position with the Australian Water Association as an administrative assistant. That position ended when she went to New Zealand with the Visa Applicant in June 2000.
The Applicant said that she met the Visa Applicant on 20 May 1999 at Sussex Centre which, she said, is outside Chinatown. (He said that it was inside Chinatown.) She had adopted an English name (Linda) and he introduced himself as "Jacky". He did not furnish his surname then or later. She noted it by chance at some later time when she saw his driver's licence when he took out his wallet to pay a bill. That later time must have occurred prior to a letter from the Applicant's father addressed to her and Mr Mak, after a visit to them in Australia prior to their marriage.
The relationship progressed because, so she said, they had interests in common. She described those common interests as visiting fascinating places. They started living together in November 1999 and married on the anniversary of their meeting, on the 20 May 2000. The marriage certificate (at T page 69) was issued in his false name.
She said that the Visa Applicant told her that he was 26 or 27. (Her memory for precise dates was at most times impressive; she said that she was good with numbers. This was the only occasion on which she was not precise). The Visa Applicant told her that he had worked as a clerk for a company in China.
She said that she first became aware of his immigration status when the first spouse visa application was made. They consulted a migration agent (Mr S Henry) who told them that because the Visa Applicant's refugee application had failed the spouse visa would of necessity have to be applied for outside Australia. New Zealand was chosen as convenient and they travelled to New Zealand at the end of June 2000 for this purpose. Mr Henry sent the application on their behalf directly to the New Zealand Embassy in June 2000. The Applicant said that she did not know why the refugee visa application had been refused. The precise date on which the parties consulted Mr Henry was not in evidence before me. However, and taking into the account the fact that the documents were submitted in June 2000 and bearing in mind that they travelled to New Zealand in the same month, and assuming that it was necessary for the Applicant to wind up her affairs in Australia and in particular to give notice of termination to her employers, it is likely on the balance of probabilities, that the Applicant knew that the Visa Applicant did not have residency status in Australia prior to their marriage. As set out later in these reasons, I think it likely that she knew long before the marriage.
The Applicant was then pregnant. Her parents had given her a sum of money (about $30,000.00) to be used as the deposit on a unit in either Parramatta or Harris Park. That money was used in fact and in part to fund their stay in New Zealand.
She said that the Visa Applicant went back to Australia in order to disconnect his mobile phone and to withdraw money. (As to why it was necessary to go to Australia for these purposes was not clear.) She was told that the Visa Applicant had been sent back to China by a member of the Air New Zealand air crew, who phoned her at 8am on 17 August 2000 in order to tell her that her husband had been locked up because he used a false identity.
The Applicant then at the end of August 2000 went back to China to have her baby. She would have preferred to have the baby in New Zealand because of its good medical facilities. However, her parents wanted her to have the baby in China.
The Applicant said that it was only in August 2000 that she learned of her husband's true identity and that she was upset and sad. She said furthermore that they (she and the Visa Applicant) had never previously spoken of their lives before they ever met and so that in consequence she knew virtually nothing about him. She said that having had a failed relationship with a man who proved to have a wife and two children of which she was not aware, she was content only with the fact that the Visa Applicant was single. (One would have thought that to establish his single status she would have had to make some enquiries as to his life in China before he came to Australia.)
She was asked as to whom the Visa Applicant's best friends were; she said that he had none. She was asked as to his taste in foods and said that he disliked coriander. She did not admit to any curiosity about his parents or his brothers. She said that his accent indicated that he came from Luchien province.
The Applicant stayed in Shanghai at her parent's apartment until February 2002. That apartment contains three bedrooms; one is occupied by her parents; her brother and his wife and son live in another, and the third is occupied by the Visa Applicant (and also the Applicant and their son Patrick when in Shanghai). She did not work while in Shanghai; Patrick was born by caesarean section on 11 February 2001. For this purpose and in respect of Patrick, a Chinese or local name was used. "We pretended he was local because foreigners pay more". During this period and thereafter the Visa Applicant did casual work of a clerical nature for a company of which her father is a director.
The second spouse visa application was lodged in Shanghai and was rejected. Advice to that effect was received from Mr Henry. She said that she was angry with Mr Henry because he had not told her that her lengthy stay in Shanghai might prejudice her prospects in this hearing.
The Applicant returned to Australia in February 2002 and stayed in Australia, living on money provided by her parents and also social security of about $170.00 per week. At the beginning of May 2000 she and Patrick then went back to Shanghai returning to Australia towards the end of August 2002. Patrick had been registered as an Australian citizen by descent.
As an Australian citizen the Applicant was obliged to travel outside China (to Hong Kong and on one occasion Macau) to renew her visitor's visa. This was so also in respect of Patrick but only after he first returned to China. China does not allow dual citizenship and she and Patrick are Australian citizens. She complained about the costs of obtaining renewal visas, and the additional costs where one required the renewal as a matter of urgency. (I note that the amounts involved appear to be minor especially when one considers that renewal is required at quarterly intervals.)
The Applicant said that she did not consider renewing her Chinese citizenship, which could have been done at any time. She felt strongly about retaining her Australian citizenship, clearly regarding it as a prize. She pointed out that she came to Australia when she was 21. She said also that her parents intend to immigrate to Australia when they retire. (Each of them said in evidence that he or she had already retired.) Relations with her brother are apparently cool. She described the Chinese system as one, which favours boys to the exclusion of girls. It must be noted though that she appears to have received substantial assistance from her parents who are clearly at the very least comfortably off. (All members of her close family have tertiary education degrees and her parents have had lengthy professional careers, and in which and particularly in the case of her father a senior position was achieved.)
The Applicant was critical of the Chinese health care system. Patrick got ill easily in China and had to see a doctor periodically. But the end of 2001 he was hospitalised with pneumonia at the Shanghai Children's Hospital which she described as one of the two best in Shanghai. She said that the service was terrible; the doctors did not explain matters to her. Moreover, an intravenous injection was given to Patrick in his forehead because, so she said, the doctors could not find a suitable vein in his arm.
The Applicant agreed that Shanghai is a modern city with a population of seventeen million people. She said that it has everything. However, according to her standard of health care does not compare with the standard in Australia. Dr Allen who was consulted by her thought that Patrick might have asthma and prescribed the use of a puffer to be used as needed. According to the Applicant, Patrick's health was better in Australia than it was in China. (No medical evidence from China was produced.) Dr Allen said in his report and at the end of it that Australia would be the preferred environment for Patrick but without specifying any detailed reasons. She said that this was so because of pollution in Shanghai, described by her as very bad.
When back in China, the Applicant became pregnant again; she said that this was accidental and not intended because she and the Visa Applicant were not sufficiently settled. A termination procedure (described by her as horrific) took place in September 2001.
After that termination the Applicant again became pregnant and again, according to her evidence, accidentally. The Visa Applicant wanted her to terminate the second accidental pregnancy again because they were not sufficiently settled; she was not prepared to do so.
The Applicant spoke at some length of the one child policy in China. She said that this is the law and not only that a second child causes financial difficulties in the form of fines but that the child would face financial difficulties in the form of additional charges for education and medical care. She said also that foreigners too are penalised in this area. (As noted previously, Patrick was passed off as a local at birth to avoid the extra cost.) In general terms the Applicant displayed some considerable concern as to cost factors; she referred on more than one occasion to the cost of renewing her visa and the additional cost which foreigners have to bear, but which was overcome apparently easily enough in the case of Patrick.
When back in Shanghai, the Applicant and the Visa Applicant talked about his use of a false identity. She said that he came from Fujian province which has many people who go abroad illegally because they think "it's the right way to go". She said that while in Melbourne she had a friend who made up stories for Chinese people and that the stories were all the same. She said "it is very hard for people from Fujian province because they don't obey the law". She talked of a "vicious cycle" which caused them to behave illegally. (I am not sure what precisely to make of this evidence; it would appear prima facie to suggest that so far as she is concerned conduct of this nature being general is somehow excusable.)
Patrick has spent fifteen of his twenty months in China. His father has a good relationship with Patrick and did a certain amount of "mothering" when Patrick was born. Although Patrick on his return to China in May 2002 did not at first recognise his father, the relationship between them was re-established thereafter.
The Applicant said that she had never asked about the Visa Applicant's past because she did not like to ask questions. She said that if this application fails she will have her second child in Australia and that she would visit China and make another application at a later date. She denied that her second pregnancy (after Patrick's birth) was intentional and designed to improve her prospects of success in this hearing.
I have considerable reservations as to the alleged lack of curiosity on the part of the Applicant about the Visa Applicant and to which I will refer later in these reasons. I think also that she may have exaggerated the allegedly poor standard of health care in Shanghai. She may in addition have exaggerated the extent to which Patrick is healthy in Australia but not in China. As I said earlier in these reasons, three quarters of his short life has been spent in China. Children get ill, and in the nature of things, if ill Patrick is likely to have been in ill in China rather than in Australia. As to the pneumonia attack, there is nothing to suggest that this could not have occurred in Australia. I note also that Dr Allen merely thinks that asthma is a possibility although the Visa Applicant said that Dr Allen was treating Patrick for asthma. I accept that Shanghai and other Chinese cities have a high level of pollution.
In cross-examination the Applicant said as to the Visa Applicant's expression of remorse that after he was caught in Brisbane he admitted that his assumed identity was false. This, so she said, was why he removed the page from his passport and withdrew the first spouse visa application. That statement was, in my view, not true; those later actions were designed to prevent disclosure and not to further it. She said that he is truly sorry because of the hurt it had caused. She again made it clear that she would not give up her Australian citizenship and resume her Chinese citizenship which can be done at any time. She does not want to return to China.
PART D
THE EVIDENCE OF THE VISA APPLICANTThe Visa Applicant gave his evidence through a telephone link to China. The Visa Applicant was born in Fujian province and he first came to Australia in June 1998. It is unnecessary for me to go into details to his admissions of his false immigration conduct. Many answers were punctuated by expressions of remorse; an expression of remorse was on occasion the answer to a question which called for a specific answer.
He was asked in particular why he came to Australia on a false passport. He said that the time there were many people doing this so "I did the same thing – I wanted to earn more money there". As to why he needed false passport, his answer was that it is not easy to obtain a passport or a visa in Luchien province.
The Visa Applicant has a mother and two brothers living in Fujian province. He had twelve years of high school and thereafter worked on construction sites on a casual basis. Since his return to China he has helped the Applicant's father with paper work and filing. He has not undertaken any course of study.
When asked why he lodged an appeal to the RRT after his original false protection visa application was refused he said that other Chinese people told him that it is possible thereby to stay longer and "become legal". He was asked how he could have accumulated the money required for his passport and to live in Australia; the amount involved in aggregate is considerable and depending upon the applicable exchange rate would almost certainly be in excess of $70,000. He said that he borrowed the money from friends and relatives. The idea was that he would earn considerable money in Australia and out of those monies repay what he had borrowed. (Since he has no qualifications of any kind, it is hard to see how.)
The Visa Applicant said "I realised that I had done something terribly wrong and I feel so sorry for my wife". In answer to a question as to why he regretted his conduct, he said that this was because it resulted in his separation from her and Patrick.
He spoke of his love for Patrick, and said that Patrick has asthma.
The Visa Applicant said that living with his parents-in-law was not always convenient and that the apartment was crowded especially when his wife and child were living in it. Patrick's cries disturbed the sleep of the adults leading to a brief stay in Shen Zhen. When asked whether he had thought about obtaining more remunerative work, he answered that he had no qualifications. When asked what work he could do in Australia he replied that he could do anything – "that I am a family man and concerned about my family". He said that he would like to be involved in the intellectual technology area and that he has picked up some knowledge of computers through observation. (The Visa Applicant had said that if he came to Australia he would start a small computer business with financial aid from the Applicant's parents and that he was learning English for this purpose. In all the circumstances this sounds more like a pipe-dream than reality.)
The Visa Applicant was asked whether he had changed since his marriage. He said that he had changed a lot and "become more sincere".
In cross-examination the Visa Applicant also said that he and his wife never ever talked about their past. He said that this was unnecessary because they had shared interests; those shared interests included visiting clubs such as the Mandarin Club, Chatswood and North Sydney. When pressed on this, he said that they also visited places such as the Blue Mountains. He said in particular that there was no discussion of background because they were deeply in love. When asked how they could be so deeply in love, he replied that this was so because they had the same hobbies and interests; they "went to see the same movies – after a few months we understand each other". He was asked whether he had given her a true or a false date of birth; he said that he had given her the false one. When asked why he would lie about something like that, he said that he had to maintain the false identity.
The amount paid for the false passport was RMB 300,000 which equates depending on exchange rates to approximately $70,000.00. The Visa Applicant agreed that from 1998 to 2000 he used the false identity in all facets of his life and including in order to sign the statutory declaration at S page 98.
The Applicant's father came to visit the couple in March 2000. When asked how the Applicant's father could write to him as Mr Mak (S page 101) he said that this was because her father approved the marriage and she must have told her father that his name was Mak.
He was asked why when he came back to Australia (after leaving Australia for New Zealand, he went to Brisbane). He said that he went to Brisbane to visit his friend Bin Li.
In re-examination he said that he tore the page out of his passport before boarding the plane in New Zealand "because it did not give a good record" and went on to say that he didn't think the Australian authorities would realise that he had done so.
PART E
THE EVIDENCE OF PENG YING DING (THE APPLICANT'S MOTHER)The Applicant's mother was asked whether the Applicant was living with her when Patrick was born. She answered that she was and that the Shanghai Children's Hospital gave Patrick an injection in his scalp. (She was of course referring to a subsequent incident when Patrick was being treated at the Shanghai Children's Hospital).
The Applicant's mother gave evidence as to the disadvantages facing a second child in China. The child would according to her not be entitled to the same benefits.
The Applicant's mother worked for two years up to 1999 in a travel agency and before that in public relations in a motorcar company. She worked continuously from 1980 until her retirement in 1999. She said that she is now involved in dealing on the stock exchange. When asked whether she could in case of need help in looking after Patrick, she said that she would not be able to do so during the week because from 9.30 a.m. until 4 p.m. every day during the week she is involved in her stock exchange activities. (The Applicant doubted her mother's ability to help even on weekends because she had her own activities.) She also said that she knew nothing of Patrick's other relations in Fujian province.
PART F
THE EVIDENCE OF KUI YUAN FANG (THE APPLICANT'S FATHER)The Applicant's father said that before his retirement in 1999 he worked in Shanghai for an automotive import export company as a senior engineer. Since then he has been the Chairman of a private company which has an office in the city and he goes there every day for six hours. The Visa Applicant helps him on a casual basis; "he just helps me with something".
He was asked about differential treatment in relation to foreigners. He said that after China joined the WTO, Australian citizens should be treated in the same way as Chinese nationals but still had to pay more in hospitals. He was asked what other differential treatment there was and said that in restaurants they paid the same.
He said that he remembered visiting Australia to visit his daughter before the marriage. The Applicant and the Visa Applicant were living together and he knew the Visa Applicant only as Mr Mak. He could not remember who told him the name Mak; it could have been either the Applicant or the Visa Applicant.
When asked whether he made any inquiries about the Visa Applicant, he replied – "It's their business. I as a parent am not interfering. His surname is not important."When asked whether he is wealthy, he said, "Yes in China, I am about the middle." He said that he had provided his daughter with some help but not much. When asked whether he feared that the Visa Applicant might be a fortune hunter, he said that this was impossible because his son would inherit everything. (The Applicant's father has visited Australia on a number of occasions and the Applicant's mother has visited Australia on two occasions; the statement by the Applicant's father that he is "in the middle" in China would appear to have been somewhat modest; he and his family are plainly members of at least the upper middle classes and are clearly at least comfortably off.)
When the Visa Applicant's false identity was put to him, he said that he knew about it at a late stage, that it was dishonest, but that the Visa Applicant was good to his wife and son.
PART G
THE SUPPLEMENTARY RELEVANT DOCUMENTS - EXHIBIT R1In addition to the Supplementary Relevant Documents there are numerous other exhibits dealing with the situation in China; I refer in this context to the list of exhibits set out in clause 3 of this decision. However, and before the Tribunal, Mr Murphy referred only to the Supplementary Relevant Documents.
In respect of the UK report, clauses 6.12, 6.13, 6.14 and 6.17 read as follows:
"Implementation of policy
6.12. There are regional and urban/rural differences in the implementation of the family planning regulations. [3m] There is a difference in rural versus urban implementation, as the urban work units have declined in influence. (See above for urban neighbourhood committees). [3ad] Urban couples, up to 1998, seldom obtained permission to have a second child, although urban couples who were themselves only children were allowed to have two children. In 1999, there have been signs that the Government is beginning to relax its policies in the cities.[2e] Exceptions are allowed for many of the 70% of Han who live in rural areas, all of whom in some provinces are permitted two children, and ethnic minorities are subject to less stringent population controls. Minorities in some rural areas are permitted to have four children. In Fujian, in 1998, remarried couples are permitted to have one more child if the sum of the children from previous marriages do not exceed two. [2b,2d,3m]
6.13. Disciplinary measures against those who violate the policy include fines, withholding of social services, demotion, and other administrative punishments that sometimes result in loss of employment.[2a,3a,3c] Levels of fines vary by region; in Shanghai, the fine for violating birth quotas is three times the combined annual salary of the parents, while in Zhejiang province it is 20% of the parents' salary paid over 5 years. Unpaid fines have sometimes resulted in confiscation or destruction of homes and personal property by local authorities.[2d]
6.14. Each work unit (factory, office, village etc.) is allocated a target of 'authorised' births for the following two or three years. The effect of these targets can be to regulate not only the number of births per couple, but also the timing of births. The government opposes the use of force or coercion in implementing family planning regulations, but the imposition of penalties on local officials failing to meet the targets of the birth quota system puts them under intense pressure.[3d] On the 1 January 1999, new national regulations on "methods of management of family planning among the floating population" came into force. They put the onus on employing workplace units to ensure the policy was carried out. [3ad]
Actual Implementation and Practice
6.17. Government officials have acknowledged that there have been instances of forced abortions and sterilisations, and there are anecdotal accounts of raids on rural villages by task forces rounding up women for forced sterilisation or abortion.[3d,17b] There are still, in 1999, routine allegations of enforced sterilisations, particularly in rural areas, and regular re-enforcement of regulations. [4bz] The 1989 Administrative Procedure Law, enacted in October 1990, allows citizens to sue family planning officials for misdeeds.[3d]"
The UK report indicates that there are still penalties (of a financial nature in respect of violations. The reference to opposition to force and cohesion in clause 6.14 indicates by its very presence that there is still a residual problem. However clause 6.26 of the UK report states that:
"6.26. Nevertheless, Chinese women are averaging over two births each. In the larger cities, many people would opt to have only one child without government pressure, for economic and employment reasons. Those less reliant on the benefits of the work unit, such as transients (see paragraph 6.21-6.22) and farmers in remote rural areas are typically able to have two or more children.[3d,9a,2c] Official figures from a 1995 survey indicated that 25% of women of child-bearing age have 3 or more children.[2d]"
Clause 6.33 of the UK report provides:
"6.33. The Chinese central government has therefore officially relaxed family planning regulations for urban couples, permitting two children for a couple that is made up of two only children. [4gp] Reports in June 2000 in the Vancouver Sun reported an official relaxation of the local Shanghai regulations.[3aj] The view that relaxations were on the way were developed by other news agencies. [4kf] Held by the Canadian IRB to be a misunderstanding of current concessions to urban couples where the parents are both from one-child families (see section 6.11 of the assessment). [3aj] The Shanghai regulations date from August 1990, amended 17 October 1992, are notable for their articles regarding migrant families. In 1998, the Shanghai authorities were active in discouraging second children. [3ah] Shanghai has been held to be a comparatively rigorous enforcer of the birth control policies. [3aj]"
In respect of "black children" 6.37 provides:
"'Black children'
6.37. Children born outside the permitted birth plan of a couple are known in China, colloquially, as 'black' children (hei haizi). A case in the High Court of Australia in April 2000 [15d,18e] led to a ruling that such children may be considered a social group under the 1951 Convention, and discussed in an inquiry into Australia's refugee program, in the Australian Senate. The Australian Department of Foreign Affairs and Trade report in followup reported that "black children" was not an official PRC term, but if meant in terms of identifying colloquially children born in excess or outside birth control policy, then it was used as a term of identification. [15b] Any problems with officials over non-registered status that would logically be the case are, in practice, rarely meaningfully enforced, with the situation being particularly unclear in rural areas. [15b] The question of lack of registration limiting access to services such as health and education is misleading: health services in rural areas have never been free of charge; likewise education is increasingly fee-paying at all levels. Such services are accessible upon payment. [15b] The (PRC) State Council has stated that unregistered children will be registered unconditionally as part of the fifth national census in January 2001. [15c]"
The US report at page 37 indicates:
"The Government continued to implement comprehensive and sometimes coercive family planning policies. The State Family Planning Commission (SFPC), with a staff of 400,000, formulates and implements policies with assistance from the Family Planning Association, which has 83 million members working part-time at 1 million branches nationwide. A strict one-child policy (or two-child policy for couples with no siblings) applies in the cities, but not in most rural areas, where 70 percent of citizens live. For enforcement, birth control policies depend heavily on severe economic penalties (called "social compensation fees") for over-quota children. These fines are assessed at widely varying levels, depending on the circumstances of the parents. Most demographers estimate fertility at 2.0 to 2.3 births per woman (although the official figure is 1.8), indicating that the "one-child policy" is not applied uniformly.
Couples in urban areas are affected most severely by family planning regulations, seldom receiving permission to have more than one child, although urban couples who themselves were only children may have two children. Fines for over-quota children can be extremely high, equaling several years' wages for an average worker. At the same time, economic development and other factors such as small houses, both parents working full-time, and high education expenses have reached a level where couples in major urban centers often voluntarily forego having children or limit their families to one child. There were indications that, due to the success of the one-child policy in urban areas, the Government was beginning to relax its policies in the cities. In order to delay childbearing, the Marriage Law sets the minimum age at marriage for women at 20 years, and for men at 22 years; marrying 2 or more years later is encouraged. It is illegal for unmarried women to bear children. "The US report at page 38 specifies:
"Central Government policy formally prohibits the use of force to compel persons to submit to abortion or sterilization; however, intense pressure to meet family planning targets set by the Government has resulted in documented instances in which local family planning officials have used coercion, including forced abortion and sterilization, to meet Government goals. During an unauthorized pregnancy, a woman often is paid multiple visits by family planning workers and pressured to terminate the pregnancy."
The Applicant in her evidence said that although in relation to a second child there is no longer coercion to abort the pregnancy the authorities pressed women to do so. (I note that I do not think it likely that an Australian national would be subjected to coercion on the basis alleged.)
It is difficult to know what to make of all of this information; in some respects contradictory and inconclusive. As I said earlier in these reasons I accept that there is pollution in Shanghai and in other Chinese cities. I accept also that to have a second child in Shanghai might result in difficulties but confined apparently to additional financial cost. As set out in the UK report, Chinese women are still managing to have more than one child. On the other hand the UK report also states that Shanghai authorities were active in discouraging second children. I note that I have dealt with the one-child policy in China at some length partly because it was so dealt with at the hearing and partly because although the unborn child is not a child for the purposes of Direction 21, the Applicant's pregnancy is a relevant factor.
PART H
AUSTRALIAN NATIONALSThere was no clear evidence as to the fact that Australian nationals were obliged to pay more for medical care and education. It would seem though that it is easy enough to circumvent the regulations more particularly when on the face of it the person involved looks like a local, as is the case with Patrick.
The Visa Applicant as I have said complained about the cost and inconvenience involved in having to go to Hong Kong to renew her visa. The cost is not high in Australian dollar terms even when one wishes the renewal to be dealt with urgently.
If the Applicant were to resume her Chinese nationality (which she does not want to do) these problems would disappear.
PART I
CONSIDERATION OF DIRECTION 21
DIRECTION UNDER SECTION 499 – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 OF THE MIGRATION ACT 1958 – NO. 21 ("Direction 21")As indicated earlier in these reasons, it was conceded from the outset that the Visa Applicant was not of good character, and accordingly it is Part 2 of Direction 21 which is relevant.
The primary considerations according to clause 2.3 of Direction 21 are:
"PRIMARY CONSIDERATIONS
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children."
Clause 2.3 must be read in conjunction with clause 2.5 of Direction 21 which provides:
"2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)."
I commence with the question of deterrence; this in my view, must be a strong factor against the Visa Applicant. For a period of two years he treated the Australian migration system as an obstacle to be overcome by whatever means were necessary. This was not a case of an isolated breach or even of a few breaches which amounted to a continuum. He deceived the authorities repeatedly over a period of two years, and according to the Applicant and her father he deceived them too. And he was apparently alive to possible problems as indicated by his withdrawal of the first spouse visa application and his actions in removing a page from his passport, and in order, so he hoped, to overcome possible difficulties. His immigration misconduct was very serious indeed. Presidential members of this Tribunal have repeatedly said that the observance of truth in immigration matters is vital. See for example Deputy President McMahon's decision in ReLachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where he said at pp 155-156:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications...Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld."
Much the same can be said about the expectations of the Australian community. Mr Murphy urged me to take into account that there are many decisions which state that one must have regard to the fact that the Australian community would expect the Tribunal to interpret Direction 21 in a humane fashion. Accepting that this is so, it is my view that the Australian community would not think it proper to recommend the grant of a visa in circumstances such as these. It is necessary having regard to the evidence of the Visa Applicant and the Applicant to send a strong message that conduct of this type cannot and will not be tolerated.
The deceitful conduct of the Visa Applicant was directed in the main to one aim and that is to the attainment of residency status in Australia to enable him to earn money, and certainly more money than he would ever have earned in China. But that said, his conduct was of so serious a nature that it is not possible to discount the risk of recidivism.
I turn now to consider the interests of Patrick. His interests rank as a primary consideration. The starting point both under Direction 21 and under the Convention referred to below is that his best interests are served by his being with both of his parents. (I note in this context that having regard to the decision of Deputy President Forgie in Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 the unborn child is not treated as a child for the purposes of Direction 21.) It must be remembered that Patrick is an Australian citizen. As such he will be able throughout his life to come to and leave Australia as he chooses. His mother has a choice. She can stay in Australia, which she wants to do, or she could return to China where Patrick could be brought up like any other Chinese person. Patrick has spent much of his young life in Shanghai. The evidence as to the fact that he was sick in China can be attributed, as I have said to the fact that three-quarters of his young life was spent there. Asthma is a possibility only; and asthma is not unknown in Australia.
I note in this context that there is nothing in the evidence to contradict the assertion that the Visa Applicant is a caring father; nor do I have any doubts about the genuineness of the marriage. I am prepared to accept that medical care in Shanghai may not be as good as it is in Australia, although I doubt whether it is even nearly as backward as the Applicant would have me believe. Australia may in general terms be the preferable place to live not least because of its generous social security system. But the Applicant could choose to live in China and be reunited with her husband. She could retain her Australian citizenship. I note that the Applicant was born in China and grew up in China and is thus able to adapt easily back to life in China. Further both the families of the Applicant and Visa Applicant are living in China and are able to provide some support. The only adverse result is there would apparently be some additional costs (and she has demonstrated an ability to overcome at least some of them.) Her parents are plainly people of means who are willing and able to assist her. I might add that the Applicant's mother's evidence that she spends all day and every weekday playing the stock market was plainly intended to lead me to think that her help in China would be unavailable. I do not accept that this is so. Patrick is a child who is Chinese in origin; he looks Chinese and he is being brought up to speak both Mandarin and English. He would fit in without difficulty and every single one of his close relations (other than his mother) is resident in China.
The evidence before me as to the one child policy in China is to say the least contradictory and I cannot reconcile all of the conflicting statements in the material before me. I respect the decision of the Applicant not to terminate her second accidental pregnancy; at the same time I have to note that this is a matter of choice so far as she is concerned. If she elects, as she said she would, to stay in Australia she will receive larger social security benefits on the birth of her second child and these are in any event the means to ensure regular visits. Nothing was said at the hearing of the couple being reunited in another country or place but Hong Kong might be a possibility. The Applicant is qualified, educated and competent and able to find suitable employment, with her qualifications, virtually anywhere, and including Shanghai or Hong Kong.
I agree with the decision of Deputy President Forgie in Ly (supra) to the effect that the unborn child is not a child for the purposes of Direction 21. But, and as I have said, the Applicant's pregnancy is a factor which should be taken into account.
Mr Murphy referred me to my own decision in Moengangongo and Minister for Immigration and Multicultural Affairs [2001] AATA 74 where I recommended the grant of a visa to a Visa Applicant who had committed breaches of the Act. However, his breaches were in no way comparable with those of the Visa Applicant. Moreover, the applicant in that case was rather older than the Applicant and was in addition in poor health and badly needed the assistance of her husband to look after the child.
Mr Murphy also referred me to Almaza Said-Chidiac and Department of Immigration ( AAT 12936, 1 June 1998). This was a decision of Deputy President Gerber and couched in his own inimitable and colourful language. The conduct of the visa applicant in that case was comparable with that of the Visa Applicant in this case. But Deputy President Gerber felt (and clearly with considerable reluctance as appears from clause 87 of his decision) that he had no option but to recommend the grant of a visa because of the entirely dysfunctional nature of the mother in that case. I think that this case is more aptly characterised as akin to that of Re Medyanto and Minister for Immigration and Multicultural Affairs (1997) 49 ALD 731 referred to in clauses 84 and 85 of Deputy President Gerber's decision in Almaza Said-Chidiac (supra); those clauses 84 and 85 read as follows:
"84. Thus, the law seems to be that "bad character" and "welfare of children" must be considered in separate categories and in strict order. But is it the law, as Mr Gageler submits, that:
"Teoh requires no more than this: that in the absence of the Tribunal giving notice to the contrary and allowing the applicant to be heard, the Tribunal is to take the best interests of the child into account as a primary consideration ... and the cases make very clear that Teoh does not mean that the best interests of the child must prevail in any balancing exercise."
In other words, does Mr Gageler's interpretation of just what Teoh decided (Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273) represent too robust a view of that decision? Thus, Australia's ratification of the Convention on the Rights of the Child, notwithstanding that it has not been adopted as part of Australian municipal law, persuaded Mason CJ and Deane J (at 291-292) to hold that it created a legitimate expectation that administrators would act in conformity with the Convention, and that in all actions involving children, the best interests of the child should be taken into account as a primary consideration. Counsel cited the case of Medyanto and Minister for Immigration and Multicultural Affairs N97/49, a decision of Deputy President Dr Chappel, as an example, where the best interest of the child, although taken into account, did not prevail in the particular circumstances. That, too, was a case where the applicant entered Australia illegally, worked illegally using a variety of false names and lmarried an Australian citizen by whom he had an Australian child. The learned Deputy President concluded that the various frauds perpetrated by the applicant "are outweighed by the undue harm that would be caused to the Australian community, and in particular to the integrity of the country's migration program if a visa was to be provided to the [father]."
85. The first thing to note is that Medyanto involved - unlike this case - an appeal against a refusal to grant the applicant a Class 100 spouse visa. Secondly, the applicant mother was young and both she and the child were healthy. Whilst it is invidious to make comparisons between immigration frauds, it seems to me that what the applicant did in Medyanto was a highly organised, sophisticated and intelligently perpetrated fraud, and therefore of a higher magnitude than the primitive attempts at deception practised by the applicant in this case. Finally, I am mindful of the fact that, as Dr Maroun points out forcefully, that: "a lot of expensive community and medical services are being channelled into this family which could be minimised if the father was present to assume his supportive role."
Mr Murphy referred me to the Convention on the Rights of the Child which specifies that in general terms a child's best interests are served by being with both his parents; I refer also to clause 2.15 of Direction 21. I refer in addition in this context to a recent decision of Deputy President Handley in Wan and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 217 in which he dealt with the manner in which the Convention should be regarded. See in this regard 49 of his decision in that case which reads as follows:
"49. The Tribunal will also have regard to the best interests of Mr Wan's and Ms Yang's children, Annie and Andrew, as a primary consideration, in accordance with the legitimate expectation that administrative decision-makers will act in conformity with the United Nations Convention on the Rights of the Child of 17 December 1990, as recognised in Teoh (supra) at 291-292 by Mason CJ and Deane J. Such an approach was adopted in Vaitaiki (supra) and in Wan (supra). As the Full Federal Court stated in Wan at paragraph 32, the approach which the Tribunal should adopt is first "to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion" and, second, "to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration". As the Full Court recognised, the Tribunal is also entitled to regard the expectations of the Australian community as a primary consideration."
I accept that hardship under clause 2.17 of Direction 21 to the Applicant is a relevant consideration. However I cannot find that she was an innocent party. She may have been deceived as to identity (and I have doubts about this) but not as to his residency status.
The Applicant's evidence was that the Visa Applicant and she did not have any discussions of any sort regarding their past lives in China. They had interests in common and that was sufficient; asked what those interests were she referred as I have said to the visiting of fascinating places. She did not inquire about his family. She said that he told her that he had been a clerk in China. The Visa Applicant also said that they had had no discussions about their respective lives and families in China. The Applicant's father said that he made no inquiries about the Visa Applicant. The Applicant said that she did not even know the Visa Applicant's surname (Mak) until she saw it by chance when he was paying a bill. The Applicant's father wrote a letter to his daughter and Mr Mak; when asked how he came to know the name he said that either his daughter or the Visa Applicant had given it him. But according to his evidence it was their affair and none of his business and the Visa Applicant's surname was unimportant.
On a careful consideration of all of the evidence and the T documents I do not believe that this evidence is likely to be true. It is hard to believe that two young people meeting each other casually, then living together (after their relationship had developed) and marrying do not embark from the outset on a voyage of mutual discovery. They were both newcomers to Australia with a common background of life in China. And the Applicant's father cannot be believed in this context either. The Applicant's family is clearly a close-knit one; the Applicant's parents, brother and family and the Visa Applicant (and also the Applicant herself when in Shanghai) live in the same apartment. The Applicant's parents have assisted their daughter financially and significantly so. She wanted to bear her son in New Zealand; at the behest of her parents she gave birth in China. This is a close family of means taking into account the extent to which they have been able to travel and the positions they have occupied in their professional lives.
The Applicant claims that the Visa Applicant deceived her and that she knew of his real name only when she heard of it from a member of the Air New Zealand crew after he was removed from Australia. The Visa Applicant said that he phoned her from the aircraft but she did not make any mention of that call. (Such a call from an aircraft in these circumstances would surely have remained in her accurate memory.)
It is hard to believe firstly that the Applicant knew nothing of the Visa Applicant; it is equally hard to believe that the Applicant's father, the head of a close family of means had no interest whatever in the identity and background of the man who was to marry his only daughter. All of this evidence is in my view inherently improbable.
Apart from any other considerations, the Applicant must have known that the Visa Applicant did not have residency status in Australia before the marriage. They were married in late May 2000 before leaving for New Zealand in June 2000 in accordance with Mr Henry's advice. The first meeting with Mr Henry would have taken place in all probability in point of time prior to the departure as it would as, I have said, have been necessary to make suitable arrangements and in her case to give notice of termination of her employment. There is another and even more coregent reason why she must have known the Visa Applicant did not have residency status in Australia and that is that according to the evidence, he did not at any time work in Australia. She must have known that he did not work because he could not do so and because he did not have residency status in Australia. At the very least she had knowledge of his lack of residency status. She is very far from the sort of person who is likely to marry a man who simply did nothing and lived on her means and earnings; she displayed throughout a keen understanding of financial considerations. It is likely in my view on the probabilities and having regard to the evidence as a whole that she knew much more than she has been prepared to admit. She is better educated and almost certainly more intelligent than he is. It is doubtful that he would in these circumstances have been able to conceal or even have wanted to conceal the true position from her. To attribute all of this to alleged cultural differences is not in my view tenable in the context of this particular well-to-do family headed as it is by a father who is accomplished and educated and who has means, and who is married to a woman who is herself accomplished and educated and judging by her stock market activities, also has means.
In Medyanto (supra) Deputy President Dr Chappell concluded (as set out in clause 84 of the decision in Almaza Said-Chidiac (supra) that the various frauds perpetrated by the Applicant were "outweighed by the undue harm that would be caused to the Australian community, and in particular to the integrity of the country's migration program if a visa was to be provided to the [father]". This is a case in which I have come to the same conclusion.
I have formed the view after careful consideration of some of the evidence before me was orchestrated to an extent to further this application. Thus the Applicant's mother was too busy dealing on the stock market to care for her grandson. And the Applicant's father was so he said altogether indifferent to the identity and background of the man who would become his son-in-law and who would live in his home and works for him on a casual basis. And the Applicant herself, well educated, accomplished and intelligent gave evidence as to her total lack of any curiosity as to the man she married. This is simply not credible. This Chinese family is likely in my view to be just as conscious of the importance of family as any middle-class Australian family and perhaps more so.
The conduct of the Visa Applicant has been so serious that it outweighs as a primary consideration the interests of Patrick.
A few days after the hearing had been completed, the Tribunal received a letter from the Applicant's solicitors complaining about the interpreter and suggesting that in certain respects set out in the letter, the interpreter had not translated correctly; the letter then went on to specify that instructions were being sought as to whether there would be an application to rehear part of the evidence. Subsequently, the Applicant's solicitors notified the Tribunal that an application for the rehearing of part of the evidence would not be pursued but that the complaint against the interpreter would be maintained. It is my view that a complaint of this nature is properly made at the hearing and not thereafter.
This is not a case in which it would be proper to exercise the discretion set out in Part 2 of Direction 21. Accordingly the decision under review is affirmed.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Block,
Deputy PresidentSigned: H Sim .....................................................................................
Associate
Date/s of Hearing 23 October 2002; 24 October 2002
Date of Decision 20 November 2002
Solicitor for the Applicant Kerry MurphySolicitor for the Respondent Edward Palmisano
4
0