Flynn and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 95

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 95

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/365

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL FLYNN

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date28 January 2005

PlaceMelbourne

Decision The decision under review is set aside and the visa applicant's spouse visa application is remitted to the respondent with a direction that the visa applicant's application not be refused on character grounds.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

Immigration - spouse visa - character test - long term unlawful resident - exercise of discretion - decision under review set aside

REASONS FOR DECISION

28 January 2005 The Hon C R Wright QC (Deputy President)     

1. The review applicant is the husband of Li FANG TANG, the visa applicant. They were married on 15 March 2003. On 6 July 2003 the visa applicant applied for a subclass 309 spouse visa. This application was refused by the Minister’s delegate on 20 February 2004 on the ground that having regard to the visa applicant’s past and present general conduct she did not pass the character test under s501(6)(c)(ii) of the Migration Act 1958 (“the Act”).

2.      The visa applicant is a citizen of the Peoples Republic of China (“PRC”).  She was born in Shanghai on 19 September 1954 and is now 50 years of age.  The review applicant is an Australian Citizen and is 60 years old living at East Hawthorn.

3.      The visa applicant entered Australia as a member of a tour group on 30 October 1996.  She had been granted a subclass 676 tourist (short stay) visa on 22 October 1996.  This visa permitted her to stay in Australia until 30 January 1997.  She absconded from the tour group in Melbourne and on 16 January 1997 she lodged a subclass 866 protection visa application based on claims of persecution in PRC.  She was granted a bridging visa pending determination of her application.  The application was refused on 13 May 1997.

4. On 21 May 1997 the visa applicant sought review of the departmental decision by the Refugee Review Tribunal (“RRT”). On 25 November 1997 the RRT affirmed the original decision. The visa applicant sought the intervention of the Minister under s417 of the Act but that was refused on 7 July 1998. The visa applicant had been lawfully in Australia pursuant to bridging visas until this time but her entitlement thereunder ceased on 5 August 1998.

5.      Thereafter the visa applicant remained unlawfully in Australia until 14 February 2003 when she was approached by compliance officers.  Upon payment of a $10,000 bond by the review applicant she was released on further bridging visas until her departure from Australia on 25 June 2003, with her husband.  She is currently living in Shanghai awaiting the outcome of the present application to review the decision of the Minister’s delegate made on 20 February 2004.  That application was lodged with the AAT on 22 March 2004. 

6.      It is common ground that the visa applicant was a member of a class action instituted in the High Court of Australia and would have been entitled to a bridging visa during the currency of those proceedings from 14 August 2000 until the action was dismissed by the Court on 16 February 2001.  There was a dispute however as to whether or not the visa applicant had taken steps to obtain such a visa.  I am satisfied on the evidence that, although the visa was never issued, the visa applicant and the review applicant both had a genuine belief that the visa would be and had been obtained by legal advisers, and they had no reason to believe it had not been issued.

7.      A hearing of the application to review took place before me at Melbourne on 25 November 2004.  The applicants were represented by Mr Gibson and the respondent was represented by Ms Hearn-Mackinnon.  The visa applicant gave evidence under affirmation by telephone with the assistance of an interpreter.  The review applicant gave sworn evidence.  No viva voce evidence was called on behalf of the respondent.  A number of documentary exhibits were taken into evidence;  these will be referred to an necessary in the remainder of these reasons.

8.      The visa applicant gave evidence that from October 1972 to August 1975 she had been employed as a clerk at the Shanghai Salt Product Factory (“SSPF”) in PRC.  She then completed her qualifications as a medical doctor and continued working at the SSPF in that role between November 1978 and December 1988 when she was dismissed as a consequence of her involvement in anti government activities consisting of her active advocacy against the government with her patients.

9.      From early 1989 until October 1996 she obtained employment as an assistant manager/clerk with the shanghai Jing Cai company.  She continued her involvement with the anti government movement and participated in demonstrations in Shanghai in May 1989.  she also prevailed on her employer to provide money to buy food which she distributed to the demonstrators.

10.     After the Teananmin Square uprising in June 1989 when many students were killed by government forces in Bejing, the visa application was involved in further protests in Shanghai.  She says that on 2 March 1990 three policemen came to her home and arrested her.  They drove her to the police station where she was incarcerated for nearly three months.  During this time she was tortured on 4 or 5 separate occasions.  Once they broke her finger causing considerable pain.  She was released without explanation on 31 May 1990 and every year thereafter, around 4 June, she would be placed under surveillance or required to attend the police station.  The visa applicant says that she was living under great stress and was in constant fear of being detained and tortured again.  She had trouble sleeping and had headaches.

11.     In 1991 at the request of and with the sponsorship of a medical colleague who was living in Sweden, the visa applicant sought a passport from the Chinese immigration authorities so that she could live and work in Sweden.  This application was refused on the ground that she was not a suitable person because of her involvement with the pro-democracy movement.

12.     In 1995 the Chinese government commenced a programme called the “strict attack” pursuant to which known dissidents were arrested.  In September 1996, the visa applicant says, a friend told her that she and her employer had been “blacklisted” and were to be investigated.  As a result she decided to leave China and seek refugee status overseas.

13.     These claims were the foundation for her claim for a protection visa after her arrival in Australia.  Neither the departmental assessor nor the RRT rejected the fore-going facts alleged by the visa application but in each case her application for protection was refused on the basis that her fears of persecution if returned to PRC were not “well founded” having regard to the country information available from relevant sources at that time.  It is not inappropriate, I think, to observe that having regard to the applicant’s claimed treatment by the police over an extended period and the specific warning that she received from her friend as to her “black listing” both decisions were perhaps debatable.  Neither in those proceedings nor in the review before me was it suggested that the visa applicant’s evidence as to these matters was fabricated.  It is not my function to review the protection visa decisions.  However the evidence as to these matters does have further relevance to the present review as I will shortly explain.

14.     The visa applicant gave detailed evidence as to the means whereby she eventually obtained a passport and travel documents enabling her to leave PRC and make her way to Australia as the member of a tour group.  Various aspects of her account, including her claimed motivation for acting as she did, were challenged by the respondent.  Much was made of claimed inconsistencies between the details which she provided at different times to different Australian officials.  Many of these alleged inconsistencies were rejected by the visa applicant.  Others were explained by her.  Some of the documents included in the T Documents (Exhibit R1) appeared to consist of notes made by departmental officials recording conversations with the applicant.

15.     For example there is an unauthenticated note at p.80 of the T Documents which suggests that the applicant said that an incompatible relationship with her divorced Chinese husband was “one reason I visited a/a” (i.e. Australia).  It was suggested that this, rather than a fear of persecution, motivated her to leave PRC.  I have difficulty accepting this.  In the first place the author of the note is not identified.  In the second the interview content suggests that the subject matter of the enquiry was the genuineness of the visa applicant’s relationship with her present spouse, and finally it is less than convincing to suggest that the visa applicant would seek to leave PRC merely because of a marital rift.  As Mr Gibson suggested, even if reliance is placed upon the note, it really goes no further than to suggest that it was easier for the visa applicant to leave PRC because of the absence of marital ties.  Apart from all these considerations I have difficulty in accepting the note as an accurate note of what the visa applicant said on the occasion in question.  She denied having made the statement and her interlocutor was not called to give evidence authenticating what had been written

16.     A further illustration of the point being made is this:  at page 102 of the T Documents there is a copy of a pro forma question from the visa applicant’s application for a protection visa.  It reads as follows:

“44.  Did you have difficulties obtaining a travel document (such as a passport) in your home country.    NO   YES”.

The visa applicant has indicated a “Yes” answer and has added the remark “Through friends help.  Paid 3000 RMB”.

It was suggested that this was inconsistent with other indications which she had given that it cost her 100,000 RMB to get to Australia e.g. she said in Exhibit A1 para 10  “I gave my friend 100,00 to get me out of China”.

In evidence during the hearing she said that the 100,00 RMB paid to her friend who was making her travel arrangements was to cover all expenditure “for instance, the ticketing, the travel expenses, the surety etc”.  She said the 3000 RMB was an additional payment made “like a tip – so they will try to get my passport faster”.  I see nothing inherently unprobable in the visa applicant’s explanation.

17.      A matter upon which the respondent placed considerable emphasis was the visa applicant’s claim that she believed her visa for entry into Australia had been issued in Hong Kong whereas in fact it had been issued in Shanghai.  It was suggested that this was an embellishment or fabrication concocted by the visa applicant to give credibility to her claim that she had had to resort to unorthodox methods to obtain all necessary travel documents to travel to Australia.  It was also suggested that in an interview with a departmental officer on 28 November 2003 she had admitted that the visa was issued in Shanghai (see T Documents page 258 questions 24 and 25).  The visa applicant denied that she had said this to the interviewer.  He was not called to give evidence in contradiction of her statement.  I have read the evidence of the visa applicant and the review applicant with some care.  I am left with the clear impression that, at all times, until after that interview when discussing the allegation that the visa had been issued in Shanghai with her husband, the visa applicant had firmly believed that the visa was issued in Hong Kong.  Whilst I take the point made by the respondent I am not prepared to disbelieve the visa applicant.  Her husband’s evidence, though not perhaps corroborative in the strict sense, provides significant support for her claimed belief.

18.      An alternative basis upon which the applicant’s credibility was impugned was found by the respondent in a letter which she sent to the officer in charge of the Exit & Entry Division of the Shanghai Public Security Bureau on 10 April 2003 when seeking a new passport to enable her to return to China pending the resolution of her spouse visa application (Exhibit R3). 

In that document, or rather its English translation, the visa applicant says:

“On 28 October 1996, I left Shanghai, China for Australia to go sightseeing.  At the time, I heard from friends that it was very easy to make money in Australia and daily expenses were low.  Thus I left the tour group without permission and have stayed in Australia up to the present time”.

The visa applicant did not deny writing this letter nor was the accuracy of the translation challenged.  However there are important factors to bear in mind.  First, she had previously been to the PRC Consulate in Melbourne to apply for a passport to return to China and, on being questioned as to why she needed such a document, she said that she had come to Australia originally to apply for refugee status.  At this she was severely scolded by the Chinese official and upbraided for her conduct.  She was also told that the passport would be refused and she must make her application to the Shanghai Entry & Exits Bureau.  In these circumstances it is scarcely surprising that she would make up a different story to satisfy those officials in China who had the power to grant or withhold a passport.

Second, the letter was not used for any improper purpose in relation to Australian immigration procedures.  I do not see this document as reflecting adversely upon the visa applicant’s character.

19.      There are, however, two matters which are capable to having an adverse effect upon the character issue.  The first of these is relatively minor.  When apprehended by immigration compliance officers on 14 February 2003 the visa applicant was asleep in a mobile home owned by her husband at a friend’s house in Richmond, Victoria.  She was asked if she was “Li Fang Tang”.  She said “no” and gave a false name.  Her husband was contacted by mobile phone and after the compliance officer spoke to him the visa applicant admitted her true identity.  Whilst this was clearly a case of misleading conduct and the provision of false information it was of short effective duration and was, in context, not particularly serious.

20.      The second matter is of greater consequence.  The visa applicant remained unlawfully in Australia for three years and ten months, even if one disregards the period during which she believed, erroneously, that she had a bridging visa pending the disposal of the High Court class action. The visa applicant met her present husband in August 1998.  She describes the development of their relationship in paras 29 and following of Exhibit A1.  Theirs is plainly a genuine and enduring relationship and it is also plain that the review applicant connived at his wife’s unlawful status at all times to ensure that their marriage was not disrupted.  He knew of her unlawful status before they commenced a de facto relationship and well before their marriage which took place on 15 March 2003.

21.      The visa applicant describes and explains the relationship in para 40 of Exhibit A1 in the following terms:

“During the time that I remained unlawful in Australia, I lived with Michael for almost five years and we helped each other through a lot of difficult times.  Michael taught me to live again and I was happy, our life was rich and colourful.  However my unlawful status was something that was constantly at the back of mind.  I never felt good about my unresolved immigration status.  One of the main reasons why I became involved in the class action was so that I could resolve my immigration status.  Michael gave me a reason to live and fight on.  I had lost so much in my life and I could not afford to lose Michael from my life.  I truly feared that if I revealed myself to the Department, that I risked being deported and being separated from my husband.  My psychological condition at the time did not allow for this.  I regret becoming unlawful and I acknowledge that this was not the right thing to do by the Department”.

It is reasonable to observe that the visa applicant’s unlawful residence in Australia only came to an end because she was located and detained by officers of the respondent.  The respondent’s submission contained in para 32 of the Respondent’s Statement of Facts and Contentions is of considerable weight:

“If the applicant were now able to rely on her relationship with Mr Flynn, commenced after she became unlawful, to obtain residence in Australia, she would be in a better position than if she had contacted the respondent at the time she became unlawful;  that is, at the earlier time she would have been obliged to leave Australia and not have had the opportunity to commence the relationship upon which she now relies to gain evidence”.

22.      Mr Gibson submitted that the determination that the visa applicant is not of good character should be overturned and he referred to many authorities including Godley v MIMIA (2004) fca 774 and Goldie v MIMA (1999) 56 ALD 321. Notwithstanding the elasticity and relativism which has become manifest in the concept of good character over recent years I am driven to the conclusion that in the present case the visa applicant is not a person of good character in the sense of that phrase in Section 501 of the Act. The lengthy period of unlawful residency and the involuntary manner of its conclusion appear to me to constitute a very significant blot on the visa applicant’s character, particularly as she and the review applicant were fully aware of her unlawful status at all relevant times.

23. I therefore turn to consider whether my discretion should be exercised to prevent the adverse character determination from constituting an insuperable impediment to the visa applicant’s visa application. I am of course fully cognisant of the Minister’s Direction No. 21 issued under Section 499 of the Act on 23 August 2001. The primary considerations of which I must take account under Part 2 of the Direction are:

(a)  The protection of the Australian community and its members

and

(b)  The expectations of the Australian community

24.      In assessing the protection issue I must say at once that notwithstanding my view of the visa applicant’s conduct from a character standpoint I have difficulty in seeing her lengthy overstaying as constituting a risk to the Australian community.  I think it highly unlikely that similar bad conduct would be repeated by the visa applicant if she were permitted to remain in Australia.  Her potential recidivism is therefore not a matter of significant concern. However it is also necessary to consider the aspect of general deterrence.  Frequently a lengthy period of unlawful residency would be seen as a very significant reason for refusing to exercise a discretion in an applicants favour because to do otherwise would clearly be seen as sending the wrong message to other unlawful residents, particularly if the prolonged unlawful residency period could be seen as providing a distinct advantage in the nature of a more favourable outcome to the applicant.  This is a matter of real concern, but it must be understood that the present case has some unusual features.  The visa applicant came to Australia seeking protection.  It may be said that she was unlucky not to secure a protection visa.  There is no doubt in my mind that she was genuinely fearful for her safety before she left PRC.  I am also satisfied that her application for protection was genuinely made both at departmental level and to the RRT and, later, to the Minister.  This was not a case of false information or a false story being provided to support a bogus claim.  It was a bona fide claim made on reasonable grounds.  In such circumstances the reluctance of a disappointed visa applicant to return to his or her homeland becomes understandable, particularly if a sympathetic partner is prepared to offer protection and support.  This really brings me to the second primary consideration.  I think that in the present circumstances a fair minded member of the Australian community exercising a compassionate but rational overview of the facts would not expect that the visa applicant should be denied the spouse visa which she seeks.

25.      Other considerations contemplated by the Ministers Direction include the impact of an adverse decision upon a genuine marriage and hardship which may be caused to family members (including Australian citizens).  It is also relevant to consider whether the visa sought is for temporary or permanent residential status.  The marriage of the applicants is plainly genuine and shows every indication of being an enduring relationship.  The visa applicant has been supported by the review applicant ever since they commenced their relationship in Australia.  He continues to support her financially while she remains in PRC.  It does not appear that the review applicant has any commitments which would prevent him from living in China but, at his age, I think it would be a significant hardship for him to re-establish a home for himself and the visa applicant in PRC.  Although the visa applicant appears to be living a quiet life in Shanghai without molestation or persecution by the authorities at the present time there is no guarantee that this situation will continue for the foreseeable future.  Taking account of all the issues and considerations mentioned I have concluded, not without some hesitation, that the decision under review should be set aside and the visa applicant’s spouse visa application should be remitted to the respondent with a direction that the visa applicant’s application not be refused on character grounds. 

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed:   R Hunt (Administrative Assistant)

Date/s of Hearing  25 November 2004
Date of Decision  28 January 2005
Counsel for the Applicant         Mr John Gibson
Solicitor for the Applicant          Erskine Rodan & Associates
Counsel for the Respondent     Ms Hearn-MacKinnon
Solicitor for the Respondent     Blake Dawson & Waldron