Guo and Minister for Immigration and Citizenship

[2007] AATA 1099

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2007] AATA 1099

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/774

GENERAL ADMINISTRATIVE DIVISION		)
Re		Yu Bing Guo

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date6 March 2007

PlaceSydney

Decision The decision under review is affirmed.

[SGD]

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – refusal of spouse visa – visa applicant not of good character - use of fake passport to enter Australia and to obtain an Australian driving licence – undertook paid work in Australia without a visa and did not pay income tax – necessary to balance expectations and protection of the Australian community against interest of child – visa applicant engaged in consistent abuse of the migration system – review applicant prepared to relocate to China to be with visa applicant – decision under review affirmed.

RELEVANT ACT/S:

Migration Act 1958 ss 499(1), 499(2), 499(2A), 501(1), 501(6), 501(6)(c)(i), 501(6)(c)(ii)

CITATIONS

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Barnett and Minister for Immigration and Multicultural Affairs [2003] AATA 1065

Re Choi and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1246

Re Chor and Minister for Immigration Multicultural and Indigenous Affairs [2004] AATA 766

Re Grech and Minister for Immigration, Multicultural and Indigenous Affairs [2001] AATA 22

Re Hongvilai and Minister for Immigration and Multicultural Affairs [2003] AATA 998

Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474

Re Lee and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 1038

Re Lo and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 140

Re Ly and Minister for Immigration and Multicultural Affairs [2003] AATA 435

Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

Re Nguyen and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 460

Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967

Re Qiu and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 828

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

REASONS FOR DECISION

6 March 2007	Professor GD Walker, Deputy President
Summary

1.      On 7 June 2006, a delegate of the (then) Minister for Immigration and Multicultural Affairs made a decision refusing to grant a subclass 309/100 spouse (provisional) visa to Mr Xing Ping Chen.

2.      The delegate stated that she was not satisfied that Mr Chen passed the character test in the Migration Act 1958 (“the Act”) and noted that Mr Chen’s conduct including ‘engaging in identity fraud, his continuation in providing false and misleading information and statements to the department, his stay in Australia as an unlawful non-citizen and working without permission to do so’ (Exhibit R1, p.21) was behaviour that fell within the scope of s. 501(6)(c)(ii) of the Act and thus made it appropriate for the delegate to refuse his application.

Issues

3. After receiving notification of the decision, Mr Chen’s wife, Ms Yu Bing Guo, made an application to the Administrative Appeals Tribunal for review of the decision. The first issue for the tribunal to determine is whether Mr Chen is not of good character having regard to his past behaviour and present general conduct. If the tribunal decides he is not of good character, it must then, secondly, decide whether it should nevertheless exercise its discretion under s. 501(1) of the Act to not refuse the grant of a spouse visa.

Background

4.      Mr Chen is 30 years old.  He originally arrived in Australia in September 1998 from his country of birth, China.

5.      The statement of facts and contentions filed on his behalf briefly outlines the history of his arrival and activities while in Australia:

…

Mr Chen entered Australia on a passport with an ETA [electric travel authority] authority that did not belong to him, provided false statements to DIMA [Department of Immigration and Multicultural Affairs] and RRT [Refugee Review Tribunal] in his protection visa application and remained in Australia as an unlawful citizen from June 1999 to March 2004.  Whilst in Australia Mr Chen continued to use the identity of another person that he was immigration cleared in, and made no attempt to regularise his status in Australia before he was detained by DIMA on 19 March 2004.  He also worked in [the] construction industry without permission.

…

6.      While in Australia, Mr Chen met the review applicant, Ms Guo, a permanent resident of Australia.  Later he began living with her and her daughter, Jia Min Wang from a previous marriage.

7.      In April 2004, Mr Chen departed from Australia for China after his application for a bridging visa failed.  A month later, Ms Guo and her daughter followed Mr Chen to China and in November 2004, Ms Guo and Mr Chen were married in Fujian, China.  A son, Yu Heng Chen, was born to them on 29 June 2005 in Australia.  He and his half sister Jia Min Wang are both Australian citizens.

8.      On 9 May 2005, Mr Chen lodged an application with the Australian Consulate-General in Shanghai for a subclass 309/100 visa based on his marriage to the applicant.  In considering the visa application, a delegate for the minister found that Mr Chen failed the character test.  She noted that he had no known criminal convictions in Australia or China, his marriage to Ms Guo was genuine and continuing, Mr Chen had not previously been warned about the risk of criminal deportation or visa cancellation under s. 501 and that it was in the best interests of Mr Chen’s one year-old son and five year-old step-daughter that they remain in Australia with both their parents to raise them.  Nevertheless, his continual and blatant disregard of Australia’s migration laws outweighed all other factors and in June 2006, a spouse visa was refused.

9. Ms Guo, as Mr Chen’s sponsor partner, applied to the Administrative Appeals Tribunal for review of the decision. At the hearing, Mr Chen was represented by Mr Atkin of counsel and the Minister was represented by Mr Anthony Cox, solicitor from DLA Phillips Fox Solicitors. The documents before the tribunal comprised the documents produced pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. Ms Guo gave oral evidence in person and Mr Chen gave evidence by telephone from China. A Mandarin interpreter translated for Mr Chen.

Relevant Law and Policy

10. Under s. 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s. 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:

…

For the purposes of this section, a person does not pass the character test if:

…

reasonably suspects has been or is involved in criminal conduct; or

(c)       having regard to either or both of the following:

…

(ii)       the person’s past and present general conduct;

the person is not of good character; …

…

11. Under s. 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s. 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s. 499(2) states that s. 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal) such a direction has the force of law.

12. On 23 August 2001, the Minister, exercising his powers under s. 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under section 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Evidence on the character issue

13.     In his evidence in chief (Exhibit A5), the visa applicant Mr Chen, aged 30, stated that he is living in Shu Xia village, outside Fuquing City, in Fujian province in China.  He lives with his parents and one of his younger sisters (his other sister being married) at his parents’ house in the village, which is about an hour by bus from Fuquing, changing at Long Tian town.  Shu Xia has about 1,800 inhabitants, making it a small town rather than a village.  Mr Chen is currently working in a wholesale food business, earning about 1,000 RMB per month.  He did not say where the business is located, but as a wholesale operation it is perhaps unlikely to be based in Shu Xia.

14.     After completing junior high school in Long Tian in about 1991, he stayed at home and helped his parents with their farm.  In addition to the farm, his father conducted a stone polishing business from home, but closed it in 1996 or soon afterwards as a result of ill-health.  Mr Chen stated that his parents then suggested that he should travel overseas to work so that he could help alleviate the family’s now more difficult financial situation.  He made no attempt to obtain a Chinese passport because, he said, it was common knowledge in the village that the government would not permit village people to leave China.

15.     His father arranged with an acquaintance to obtain a bogus Japanese passport and Australian visa in the Japanese name of Toru Yamada at a cost of 222,000 RMB (about $36,300 at the current rate of exchange), which was borrowed from relatives and friends.  He attended at a photographer’s to obtain the necessary photographs but said that all the other arrangements were made by his parents and he knew nothing about them.

16.     After arriving in Sydney on 21 September 1998, he met some clansmen at a function organised by the Fujian Clansmen’s Association.  One of them introduced him to a migration agent, Mr Mao Sheng Lin.  He told the agent that his real name was Chen Xing Ping and not Toru Yamada, and produced his Chinese identity card, the false passport and his birth certificate.  The agent then asked him to sign some blank application forms for a protection visa.  After the application for that visa was rejected, he appealed to the Refugee Review Tribunal (“RRT”).  He said the agent prepared him for the RRT hearing “with some basic points”, but the RRT’s decision and reasons (T10 pp106-117) show that he presented an elaborate concoction of untruths about operating a dissident bookshop in Fuquing City, publishing a monthly magazine of progressive opinion and advising a readers’ group about planned meetings.  He had ready answers, all of them fictional, to the RRT’s probing questions.

17. After his RRT appeal was rejected on 24 May 1999, Mr Chen went to see a different migration agent who wrote a letter to the Minister seeking intervention under s. 417(1) of the Act, repeating the false claim that he feared persecution because of his political activities.

18.     He conceded the wrongness of his conduct but said his presence in Australia was due to the concerns he had for his family in China, and his desire to send money back to China to support them.

19.     About a year after his arrival in Australia, he applied for a New South Wales driver’s license.  “I used my Japanese passport in my dealings with RTA as I did not have my own Chinese passport.  The Japanese passport was the only acceptable document that they would accept” (Exhibit A5, para 25).  He also had utilities accounts in the name of Yamada.

20.     He said it was not until he met his wife, Ms Guo, that he began to feel more ashamed of himself over his migration law violations.  He told her not long after they met that he had come to Australia on a false passport and had lodged a protection visa application.

21.     On 19 March 2004, he was detained by police at Burwood RTA when attempting to renew his driver’s license.  He denied that he was ever in possession of a Chinese identity card in the name of his cousin Gui Chen, as the respondent had alleged.  He said his cousin had asked him to consult a migration agent to ascertain whether he could migrate to Australia and had sent him some notarised documents for that purpose, but “As far as I can recall my cousin did not forward me his Chinese ID card” (Exhibit A5, para 31).  He said that he had never used or subscribed to the name Gui Chen.

22.     In cross-examination over the telephone at the hearing, Mr Chen proved to be an evasive witness.  He repeatedly tried to avoid answering straightforward questions, giving unresponsive replies, pleading a bad memory or asking the cross-examiner to repeat the question.  When asked if he had lied at the RRT hearing, he replied that at that time he was “a bit young”.  He said he could not remember what he had said at the RRT hearing in 1999 because it was so long ago.  Asked whether he was able to lie at that hearing because he had a good knowledge of the false claims made in the application, he asked the questioner to repeat the question twice before replying that he only wanted to stay in Australia, he did not think much about what he was saying and did not realise it would cause so much trouble.  He again repeated that he did not realise what he was doing but when asked again, he admitted after a long pause that in fact he had known that he was making false claims.

23.     He avoided a question as to whether he was a willing party to the deception of the department and the RRT by saying that he was young and had only been thinking of making money to help his family.  He denied that he had only admitted his wrongdoing because he had been caught, saying that previously he had not had the opportunity of telling the truth.  Asked if he could have told the truth at the RRT or to the Minister, he said he only wanted to stay longer in order to work.

24.     He maintained that it was because he met his wife, Ms Guo, that he gained the courage to admit his wrongdoing.  After further prevarication, however, he admitted that in the six months between the time he met his wife and the date of his detention, he could have come forward and explained the situation to the department but did not.

25.     Mr Chen was then questioned about his knowledge of the arrangements to obtain the false Japanese passport.  He said he had arranged for his photograph to be taken and had given it to his parents but knew nothing about what happened after that.  He avoided the question whether he knew it would be used for a false passport by saying that it was his only choice if he wanted to go overseas.

26.     He acknowledged that the loan of the 220,000 RMB could not be repaid from the farm income and that the lenders could only be reimbursed if he worked overseas.  He denied that he had promised to repay the money, however, saying that it had all been organised by his parents and he was too young at the time (he was 22).  When it was pointed out to him that the loan and repayment arrangements could not work without his co-operation, he avoided answering, saying that his father was sick, his sisters were at school, the family could not live on the farm income and he was the only healthy worker.

27.     He was initially reluctant to say how he had prepared himself to pass as a Japanese when negotiating the customs checkpoint, but later said that the people who organised the documents told him he should learn some Japanese and gave him some training in that language in Beijing, where he spent several days before boarding his flight to Australia.

28.     Mr Chen explained his use of the false Japanese passport to obtain his driver’s license by saying that he did not know that he could use his genuine Chinese identity card and birth certificate for that purpose.  That conflicted with his evidence in chief to the effect that the Japanese passport was the only document that the RTA would accept.  In cross-examination, he said that as the Japanese name was printed on the passport, he thought it was legal to use it.  Asked how he could possibly think that, he replied that he did not know it was seriously wrong.  He maintained that he had been generally unaware when deceiving the Chinese government, the RRT and the department.  Asked what he thought the Chinese authorities would do if they caught him using a false Japanese passport to leave China, he replied that he did not think much about it at the time.

29.     It was not disputed that for about four years and nine months while he was an unlawful non-citizen, the visa applicant undertook paid work without permission.  When interviewed on 22 March 2004, he said he could not remember the names of his employers.  On his form 80, in response to a question seeking the names and addresses of his employers, he gave no names or addresses but simply wrote that he had been a construction worker and a gyprock worker in Sydney (T25 p.202).  There was no evidence that he had ever paid income tax or that he had ever had a tax file number or, if so, in what name.  During submissions, I asked Mr Atkin about that.  After seeking instructions, he replied that his client had indeed paid tax but conceded that there was no evidence to support that proposition.  He also very properly conceded that there was no evidence of a tax file number, even though Mr Chen would have needed one if he had been paying income tax.

30.     I do not doubt that counsel was so instructed, but it is difficult to reconcile that proposition with the evidence.  It is most unusual for a person to be unable to remember the name of a single employer for whom he or she worked during the immediately preceding five years (or longer, when one includes the time when he was working lawfully while his protection visa application was being processed).  His evidence that he was unable to open a bank account because he had no identification documents (T26 p.209) also suggests that he had no tax file number.  Properly paying income tax is normally regarded as evidence of good character in such cases.

Evidence relating to discretionary matters

31.     The evidence bearing on the character issue is also relevant to the discretionary factors.  In addition, Mr Chen described how he met his wife, Ms Guo, in September 2003 at a Chinese moon festival in Auburn, Sydney.  As they came from the same area in China and had mutual friends, he met her at a number of other functions and in late November 2003, asked her out for the first time.  The relationship developed and he moved in with her and her daughter at their residence in Dartbrook Avenue, Auburn, in mid-December 2003.  He continued to live there until he was detained by departmental officials.

32.     He was detained in March 2004 and departed for China the following month.  On 8 May 2004, Ms Guo and her daughter travelled to China to be with Mr Chen, remaining there for 10 months.  During that time, apart from a few days spent with her parents, Ms Guo stayed with Mr Chen at his parents’ house.

33.     After they had lived together for about nine months, they decided to marry and their marriage was registered in Fujian on 25 November 2004.  Her first marriage had been dissolved by the Federal Magistrates’ Court on 27 April 2004.

34.     Shortly after the marriage in November 2004, Ms Guo became aware that she was pregnant and decided to return to Australia for the birth.

35.     Mr Chen had told Ms Guo about his unlawful status soon after he met her.  She was concerned about it and realised that he might not be granted a visa.  She denied discussing with Mr Chen what they would do if he could not obtain a visa, saying that she did not think that far ahead and simply wanted them to live together longer.

36.     Having been sponsored to come to Australia by her first husband, she understood the spouse visa process but did not agree that it would have been wise to discuss the problem with Mr Chen.  Since returning from China, she has visited him four times, once for the 10-month stay mentioned above, and then for three months from November 2005 to January 2006, then for a month in July-August 2006 and finally for 10 days in October 2006.  She said that if her husband did not receive a visa, she would move back to China to be with him, but preferred that the family have the opportunity to live in Australia.  She nevertheless denied that she had ever discussed those possibilities with her husband.  She wanted the whole family to stay together, in Australia if possible but otherwise in China.  In light of her evidence that she was worried about his visa status almost from the outset of the relationship, it is most improbable that she would never have discussed with her husband what they would do if he were unsuccessful in obtaining a visa.

37.     Ms Guo said her ex-husband has little contact with their daughter, now aged six, although he and Ms Guo do talk on the telephone from time to time.  She said she would need his consent to take her back to China to live and that he would not give it.  There is no evidence from the ex-husband, written or oral, before the tribunal and no explanation for its absence.  Both Mr Chen and Ms Guo say that Mr Chen has developed a close paternal relationship with his step-daughter.

38.     Ms Guo is not greatly taken with her husband’s home town, Shu Xia.  It has a primary school, but the nearest high school is in Long Tian town, which is 30 minutes by bus distant.  There is a health clinic in the town, but for more complex problems it is necessary to travel to Long Tian town or Fuquing City.  “I have concerns about the level and quality of education in China in particular in a village like where my husband lives.  I worry that a sub standard education will not afford my children a good start in life” (Exhibit A4, para 22).  She also expressed concern about the level of available medical treatment.

39.     Currently her daughter, Jia Min, is in kindergarten at Berala Public School.  She herself has undertaken a course in English and has applied to become an Australian citizen.  She is living on social welfare benefits.

40.     During their stay in China both children caught colds and had intestinal problems.  The younger child contracted bronchitis, as is evidenced by a Fuquing City hospital medical certificate dated 29 December 2005 (T39 p.313).  There is no evidence about intestinal disorders, but such problems are of course common hazards of visiting other countries.

Application of the Law and Findings of Fact

41. As was stated above, the first issue for me to decide is whether, pursuant to s. 501(6)(c)(i) and (ii), the visa applicant passes the character test having regard to his past and present general conduct. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

…

The concept of “good character” in s. 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within   s. 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

42.     As Senior Member Ettinger has said, “There must be honesty and integrity amongst visa applicants so that they are treated fairly and that their claims are assessed by the same standards” (Re Choi and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1246, paragraph 17).

43. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the visa applicant does not pass the character test, I must consider whether to exercise the discretion in s.501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

44. In relation to s. 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

45.     Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

46.     I find that the visa applicant has committed multiple breaches of immigration law and has made false or misleading statements in connection with visa applications within the contemplation of paragraph 1.9 of Direction No 21.  Mr Chen used a bogus passport and a fraudulently obtained visa to enter Australia.  He made elaborate false and misleading claims in support of his unsuccessful protection visa application, maintaining those false statements through the successive stages of the process from application to the department, to his appeal to the RRT, to a request to the Minister for personal intervention under s. 417.  He failed to depart after the rejection of his protection visa and s. 417 application and was an unlawful non-citizen for approximately four years and nine months, during which period he undertook paid work despite not having permission to do so.  He seeks to attribute the blame for the false statements in pursuit of a protection visa to his migration agent who helped him to complete the various application forms.  But his performance at the RRT shows that he was fully familiar with all the falsehoods advanced in his name and was able to make detailed and equally false responses when questioned about them.

47.     In any case, as Deputy President Purvis pointed out in the analogous case Re Grech and Minister for Immigration, Multicultural and Indigenous Affairs [2001] AATA 22, at para 52, the applications were made by the visa applicant, he was a party to the making of the false submissions and maintained their falsity through the various stages that he sought to pursue. It is not open to him to claim ignorance of the position that he was maintaining.

48.     Further, in his spouse visa application he falsely answered “No” to the question whether he had left any country to avoid being removed or deported, and similar questions (T24 p189).  He engaged in identity fraud, holding a driver’s license and utility accounts in the name of Toru Yamada.  The respondent contends that he also committed identity fraud in that he was holding a Chinese identity card in the name of Gui Chen, but he has offered an uncontradicted explanation for that and I do not think the evidence warrants an adverse finding on that point.

49.     The applicant did not deny the above contraventions of migration law, but claimed that he thought he was entitled to use the name Yamada in applying for a driver’s license.  For the reasons given above, I do not accept that explanation.

50.     In mitigation, the applicant submitted that his motive for breaking the law in those respects was not personal gain but to help his family in China.  While that probably was part of his motivation, I do not think it atones for his sustained and premeditated pattern of migration law violations.

51.     The visa applicant said that he did not attempt to obtain a passport and visa by lawful means because it was well known in his town that the PRC government would not allow village people to leave China.  Accordingly, there was no way he could come to Australia other than by using a false passport and visa.  Assuming that is true (and it is not a claim I have previously heard in cases of illegal immigration from China), the tribunal has held that such contentions are unacceptable (Re Ly and Minister for Immigration and Multicultural Affairs [2003] AATA 435 per Deputy President Wright QC at paras 15-16). The same applies to the submission that in coming to Australia unlawfully, the applicant did no more than many other young Chinese arrivals had done.

52.     The visa applicant tendered a favourable work reference from his employers in China, Jia You Freshness Chain Supermarket (Exhibit A2), which states among other things that he “has always strictly complied with national laws and regulations and the rules and policies of the organisation since he started working this organisation”.  The author does not say when the visa applicant started working for the company, and it is clear that Mr Chen must have infringed Chinese national laws when he left the country under a false passport.

53.     There is no evidence of recent good conduct indicating that his character may have reformed, and indeed his attempts to mislead the tribunal in his evidence at the hearing point to the contrary.  His expressions of regret must therefore be viewed as largely tactical.  It is true, as the applicant’s representative pointed out, that the visa applicant has no convictions for any other types of offences in Australia, but his record of migration law violations is serious in itself, and the applicant’s character in a migration sense is central to these proceedings.  In any event, the evidence strongly suggests that he did commit substantial breaches of income tax law while in Australia.

54.     On the basis of all the evidence, I find that the visa applicant does not pass the character test by reason of his past and present general conduct.

55. Having so decided, I must then consider whether to exercise my discretion under s. 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to the visa applicant. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

…

56.     Paragraph 2.3 sets out the primary considerations:

…

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.

…

Paragraph 2.4 explains:

…

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

…

57. Examples of what the Government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (c) serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

58.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, aims to deter other people from committing the same or similar offence.

Protection of the Australian Community

59. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s. 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. In this case, the visa applicant has made multiple false or misleading statements in connection with entry or stay in Australia. He continued to do so in his evidence at the hearing. It is clear that the visa applicant is a person who will say or sign anything in order to obtain a benefit. In a submission dated 7 November 2005, the visa applicant’s representative submitted that Mr Chen “did not knowingly, in his mind, become involved with the illegal movement of people, however he admits that he paid a sum of money to obtain a passport to come to Australia. He himself did not arrange for the movement of illegal people nor was he actively involved in such activity” (T37 p.292). He maintained that position at the hearing, saying that his parents had arranged everything, he knew nothing about what was being done and was too young, at 22, to understand in any event.

60.     That explanation is not credible.  As earlier cases have pointed out, Fujian province is a notorious marketplace for bogus passports and other travel documents (see Re Barnett and Minister for Immigration and Multicultural Affairs [2003] AATA 1065, para 112; Re Lee and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 1038 at para 70; Re Lo and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 140 at para 28). Mr Chen was an adult, he had been in the workforce for some years and could hardly have been unaware of the people-smuggling industry. Be that as it may, the loan arrangements whereby 220,000 RMB were raised to pay for the bogus passport and visa depended on his willingness to repay the loan through his earnings in Australia and it must also have been obvious from the size of the sum required that illegality was involved.

61.     Towards the end of the hearing, the question was raised whether Mr Chen had paid Australian income tax during the period of almost five years during which he was working illegally, or in the earlier period when he had permission to work while his protection visa application was being considered.  Counsel was instructed that he had.  It would have been in Mr Chen’s interests to show that he had complied with the tax laws, but he did not mention the matter in his written statements or oral evidence.  At his interview on 22 March 2004, he said that he could not remember the names of his employers.  In his form 80 that he completed on 13 April 2005, he stated that he had worked from 1998 to 2004 as a construction worker and gyprock worker, but failed to give the name and address of any employer, although specifically asked for that information (T25 p.202).  It seems unlikely that anyone could fail to remember the name of a single employer over a recent six-year period.  His lack of recall on that subject contrasts with his ability to give exact details of his residential addresses over the same period (T25 p.203).  It thus seems probable that he failed to pay income tax or lodge a tax return during any of the six years when he was working.  Even apart from that, in my view, his general conduct must be viewed as very serious.

62.     The next issue for the tribunal to consider is the risk of recidivism.  The respondent submits that the visa applicant has demonstrated a willingness to disregard Australian laws, and in particular the Australian migration system, and that there is a considerable risk the visa applicant will continue to act unlawfully and dishonestly if he is permitted to re-enter Australia.

63.     It was argued that after he was detained in March 2004 he freely confessed his misdeeds and showed that he wanted to “clean the slate” and make a fresh start.  Yet he made no attempt to be truthful with the department until he was caught, and he made misleading statements in his spouse visa application.  As was pointed out above, his attempts to mislead the tribunal in his oral evidence do not suggest that he is rehabilitated and his professions of regret and remorse must be treated with some reserve.  His regret appears to relate more to the consequences of his actions than to the actions themselves.

64.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  Mr Atkin sought to discount that factor, and it is true that the deterrent effect of a particular decision is impossible to prove in advance.  The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it (see Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023 per Deputy President Block at para 8). That is a principle well known to parents, teachers, managers and most other members of the community. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. Granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law.

65.     Such a message could be diffused through the migrant community’s information networks (Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 at paras 104-105). Mr Chen’s evidence suggested that he had some contact with such a network, via the Fujian Clansmen’s Association. Given the incidence of fraudulent migration documentation emanating from China, it is desirable that wrong messages should not be sent in cases such as the present one (see Lo at para 58; cf Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 per Deputy President Block at para 7(b)).

Expectations of the Australian Community

66.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

…

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

…

67.     A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11^th edn.  Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5^th edn.  Oxford 1998, 552).  That principle is implicitly confirmed by international human rights treaties.  For example, the International Convention on Civil and Political rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.1).  It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).

68.     In my view, the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it.  This application, like all such cases, must be decided on its own facts.  On the evidence in the present case, I consider that community expectations weigh against the grant of a visa to the visa applicant who has engaged in such consistent and sustained abuse of the migration system.  At the same time, it would expect the interests of any Australian citizen child would be given due weight.

The Best Interests of the Child

69.     The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

70.     The visa applicant has one child, Yu Heng Chen, aged 18 months, who lives with his mother, the review applicant.  Ms Guo also has a daughter, Jia Min, aged six, from her marriage to her first husband, Sui Zhong Wang.  Jia Min is currently in kindergarten at Berala.  Both children are Australian citizens.

71.     Ms Guo has made it clear that if her husband does not receive a visa, she will move back to China to be with him.  She would take the children with her, but says that her ex-husband would not consent to her taking Jia Min back to China to live.  There was no evidence, written or oral, from Mr Wang in these proceedings, however.  Nor is there any evidence that any attempt was made to contact him to ascertain his attitude to the present application, or indeed whether he is aware of these proceedings at all.  It was conceded that in the event of a dispute, the Family Court could rule on the matter.

72.     Ms Guo has expressed concerns about the quality of health care and education available in China, particularly in Shu Xia town, which has a primary school but no high school, and a health clinic but no hospital.  There is a high school 30 minutes away, and she states that treatment for more complex ailments is available at Fuquing City.  Indeed, she has produced a medical certificate from Fuquing Hospital relating to the time when her son caught bronchitis.

73.     It seems probable that at present, the standard of medical treatment available in China is below the standard available in Australian cities and towns, but children on the whole are not heavy users of medical services unless there is some pre-existing condition, and there is no evidence of one in this case.  There is no evidence to suggest that the education available in China is in any general sense inferior to that offered in Australia (except in relation to the teaching of English, presumably), and if anything it is likely to be more rigorous.

74.     At the same time, it is likely that the children would have a more comfortable life in Australia than in China.  In due course, they could return to Australia, as both are Australian citizens.  Neither child is likely to have undue difficulty in integrating into Chinese society in the meantime, as Jia Min is only in kindergarten and Yu Heng is too young to have any awareness of Australia.  It was conceded that Jia Min speaks Mandarin.

75.     Ms Guo contends that as Australian citizens, the children would incur higher school fees and medical charges than Chinese citizens, unless they were to renounce their Australian citizenship.  There is no independent evidence on that point, however, but assuming Ms Guo is right, there is also nothing to show that such fees are unmanageable.

76.     It is to be presumed that the best interests of the children lie in their remaining with both their parents, or with their mother and step-father.  If Mr Chen does not obtain a visa, that can only happen if the family is reunited in China, or perhaps in some third country to which they are able to obtain visas.  On balance, it would be in the children’s best interest if the family could be reunited in Australia, but to a less marked extent than might otherwise be the case.  To that extent, however, this consideration supports the grant of a visa in this case.

Other considerations

77.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

78.     Mr Chen’s parents and two sisters reside in China.  Since the dissolution of her first marriage, Ms Guo has no relatives in Australia, apart from the children.  Consequently, neither Mr Chen’s nor Ms Guo’s family would be adversely affected by the refusal of a visa.

79.     Ms Guo is an Australian permanent resident and has lived in this country for about six years.  She is prepared to return to live in China if that is necessary for the reunification of the family, but she would strongly prefer to remain in Australia and would therefore suffer some hardship if a visa is not granted.

80.     She is familiar with Chinese society and relocation to that country is an option for her (see Re Hongvilai and Minister for Immigration and Multicultural Affairs [2003] AATA 998 per Deputy President Handley at para 74). Further, it is clear that at all material times Ms Guo was aware of Mr Chen’s illegal status in Australia and knew that he might not obtain an Australian visa.  She was aware of the situation long before she married him and, earlier, when she conceived their child.  I do not accept that she has never discussed with him what they would do if he were unsuccessful in obtaining a visa, including a provisional spouse visa of the kind sought.  Earlier tribunal decisions have also drawn attention to the unwisdom of bringing a child into the world when both parents know there is a real risk that the parties may be unable to obtain visas enabling the family to live together in their preferred country of residence (see Hongvilai at para 76; Re Chor and Minister for Immigration Multicultural and Indigenous Affairs [2004] AATA 766 per Deputy President Purvis QC at para 51; Re Nguyen and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 460 at para 51; Re Qiu and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 828 per Deputy President Block at para 134).

81.     There is no evidence that the visa applicant is rehabilitated, and indeed his oral evidence at the hearing suggests the opposite.

82.     I am satisfied that the primary considerations of community protection and expectations outweigh the best interests of the child and the other considerations in this case.

83.     The decision under review should be affirmed.

I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President.

Signed:          Kwai-Ling Wong
  Associate

Date of Hearing  8 February 2007        
Date of Decision  6 March 2007

Counsel for the Applicant                  Mr J Atkin       

Solicitor for the Applicant                  Coroneos & Company Solicitors & Migration Agents

Solicitor for the Respondent              DLA Phillips Fox