Han and Minister for Immigration and Citizenship
[2008] AATA 129
•20 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 129
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1651
GENERAL ADMINISTRATIVE DIVISION )
Re Ji Ye HAN
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date20 February 2008
PlaceSydney
DecisionThe decision under review is affirmed.
.................[sgd].............................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – refused on character grounds – visa applicant committed several breaches of immigration law and made false and misleading statements in connection with visa applications – case has a number of distinguishing factors including that the visa applicant’s initial entry involved no fraud or illegality, the visa applicant engaged in genuine business activities and did not in fact work unlawfully – contradictory evidence given by visa applicant at the tribunal hearing suggested a risk of recidivism – other considerations outweighed by primary considerations of community protection and expectations – decision under review is affirmed, but the degree of culpability is not such that the couple should necessarily be denied for all time the possibility of living together in Australia.
…
RELEVANT ACT/S:
Migration Act 1958: ss 417, 499, 501(1)
Administrative Appeals Tribunal Act 1975: s 35
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Hossain and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 315
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1331
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OTHER REFERENCES
Direction No 21
I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315;
I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552
International Covenant on Civil and Political Rights
Johan Norberg, In defence of global liberalism, Policy, winter 2006, 43, 47
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REASONS FOR DECISION
20 February 2008
Professor GD Walker, Deputy President
Basic facts
1. The visa applicant was born in the People’s Republic of China on 24 May 1963 and is a citizen of that country. On 18 December 1996 she entered Australia on a business (short stay) (subclass 456) visa with permission to remain until 18 March 1997. She returned to China in February 1997, re-entering Australia again in July 1997. On 13 August 1997, she lodged a business (long stay) 457 visa application and was granted an associated bridging visa A. On its expiration on 22 October 1997, the visa applicant was granted a bridging visa B. In September 1998 and April 1999, she was granted two further successive bridging visas B. On 5 June 1999, her application for a long stay business visa 457 was refused. Subsequently, she was granted five consecutive bridging visas E, the last being on 29 January 2004. It expired after she left Australia on 19 March 2004.
2. In the meantime, on 20 August 2001, the visa applicant had applied for a protection visa, which was refused on 11 September 2001 (T p76-77). She applied to the Refugee Review Tribunal (RRT) on 8 October 2001 to review the delegate’s decision to refuse her protection visa application. On 25 September 2002, the RRT affirmed the delegate’s decision that the visa applicant was not eligible for a protection visa (T p84-91). The visa applicant on 15 December 2003 requested ministerial intervention under s 417 of the Migration Act 1958 (the Act) (T p92-94). That request was refused on 20 August 2004 (T p96).
3. In July 2004, the visa applicant went through a ceremony of marriage in Shanghai with the review applicant, Mr Ji Ye Han, an Australian citizen. As she was at that time still married to her first husband Xiaoli Xie, the couple did not register the marriage in China until 1 October 2004, the day after her divorce was granted.
4. The visa applicant’s request for ministerial intervention had been refused on 20 August 2004. On 20 October 2004, she applied for a subclass 309 (partner-provisional) and class BC (partner-migrant) visa at the Shanghai consulate-general. Both visas were refused under s 501 of the Act on 10 October 2006 and Mr Han applied to this tribunal for review of that decision on 29 November 2006.
5. On 11 July 2007, the applicant was directed to lodge with the tribunal and serve on the respondent the evidence on which he intended to rely at the hearing and a statement of facts and contentions (SoFaC). That direction was not complied with.
6. At a non-compliance hearing on 26 July 2007, Senior Member Allen directed the applicant to lodge with the tribunal and serve on the respondent any further evidence on which he intended to rely and a SoFaC by 10 August 2007. A SoFaC was lodged with the tribunal on 7 August 2007, but no evidence. Two days before the hearing, on 13 November 2007, the applicant lodged with the tribunal 15 witness statements, together with other documentary evidence.
7. At the hearing, the tribunal varied Senior Member Allen’s direction that the matter be dismissed if the required material were not lodged by 10 August 2007 and proceeded to hear the matter, although no explanation for the three-month delay in lodging the material had been offered.
8. At the hearing, the applicant was represented by Mr Ivan Rados, solicitor of Chancellor & Rados, with the respondent represented by Mr Tigiilagi Eteuati, solicitor of Clayton Utz. The documents before the tribunal comprised the documents (“the T documents”) produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The review applicant, Mr Han, gave oral evidence in person and the visa applicant [name redacted] gave evidence by telephone from Shanghai. A Mandarin interpreter translated for both.
Confidentiality
9. At the hearing Mr Eteuati announced that the Minister had adopted a new policy pursuant to which the department’s legal representatives are instructed to seek confidentiality orders from courts and tribunals in relation to the identification of persons who are, or who have previously been, applicants for protection visas. He therefore applied for such an order under s 35 of the AAT Act. Mr Rados did not oppose the application.
10. The visa applicant previously applied unsuccessfully for a protection visa. Persons who actually have protection visa applications pending are routinely granted confidentiality to protect their identities, and one can appreciate the rationale behind extending that protection to former applicants, to help ensure that they are not subjected to any adverse treatment in the event that they decide to return to their country of origin to live or for a visit. I therefore made the order as asked.
Issues
11. The issues in this case are:
(i)Whether the visa applicant passes the character test as stated in s 501(6)(c)(i) and (ii); and if not,
(ii)Whether the tribunal should exercise its discretion under s 501(1) so as to refuse or grant a visa to the visa applicant.
Relevant Law and Policy
12. Under s 501(1) of the Act, the minister may refuse a visa if the applicant 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 set out in paragraph (c), as follows:
…
For the purposes of this section, a person does not pass the character test if:
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
…
13. Under s 499(1) of the Act, the Minister may give written 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 this 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.
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The applicant’s evidence
15. At the hearing, Mr Han adopted his statutory declaration of 12 November 2007 (Exhibit A3) and gave oral evidence with the assistance of the interpreter. He considers that his English is adequate for everyday purposes but not for the purpose of giving evidence.
16. The applicant was born on 13 January 1964 in Shanghai and is aged 43. He had not previously been married before his marriage to the visa applicant.
17. He came to Australia on 8 April 1990 to study English and in September 1995, was granted permanent residency, becoming an Australian citizen on 29 October 1998.
18. He currently works as a part-time taxi driver and also operates a small cleaning business of which he is not the proprietor.
19. He met the visa applicant at a friend’s party on 1 September 2001. As a former professional fashion model, she struck him as “an elegant and beautiful girl”. As he knew that she operated a small cleaning business and he had done for years, they began a conversation on that subject. Subsequently, he was able to offer her numerous suggestions and advice about her business operations. A friendship developed through their constant communications, and when he returned to China in January 2002 to visit relatives, he visited her parents as well.
20. On 19 March 2004, the visa applicant discovered that her husband of only two weeks was in a relationship with another woman. She left him and decided to return to China. Mr Han drove her to Sydney airport.
21. By that time he had formed a high opinion of her personal qualities and had become very fond of her. The day after she departed for China, he telephoned her in Shanghai as he knew she would be feeling depressed. Thereafter, he telephoned her frequently and on 5 April 2004 proposed marriage.
22. In June 2004 he travelled to Shanghai, where their wedding took place in July. It was not registered until the day after her divorce became absolute on 30 September. By then the visa applicant had already undergone an in vitro fertilisation (IVF) operation in Shanghai, but it was unsuccessful. They decided to have another IVF operation when the visa applicant was back in Australia. On 6 October 2004, Mr Han left Shanghai to return to Australia. His wife submitted the partner visa applications in Shanghai on 20 October 2004.
23. The applicant believes that his wife’s application for a protection visa failed because insufficient details were supplied. He also believes she overstayed and worked without permission because she was not notified of the refusal of her 457 visa application in 1999 and continued to believe that her bridging visa with work permission was still valid. Thus, she continued to work, “religiously” continuing to lodge her business activity statements and tax returns. He believes her immigration predicament results from her failing to check her visa status periodically with the respondent.
24. Further with respect to his wife’s character, he stated that “my wife’s father is a police officer and her mother is a doctor. My wife comes from an educated and privileged family. She is an only child and her parents brought up their daughter to be artistic, academically gifted, and to respect people and to gain a lawful living”.
25. At the hearing, Mr Han said that for the first six months of their friendship he had been unaware that she was in a relationship with Xiaoli Xie, whom she later married. He had not asked about such matters, considering them to be private, and did not see Mr Xie at parties.
26. It was not until some time after the RRT dismissed her appeal on 22 October 2002 that she told him that she had migration problems. She then explained that she was worried that she could be sent back to China, where she would be unfairly treated because of her Falun Gong practices. He had never seen her practising Falun Gong, which she did on her own, and did not think she had ever mentioned it. In any event he was not interested in the movement.
27. At the time she married Xiaoli Xie, he was fond of her but “could not say that he had any romantic feelings for her”, especially as he had known for months that she was to be married. In the course of his daily telephone calls to her after she returned to Shanghai, however, he gradually formed the idea of developing a relationship with her, and thought she was aware of his intention.
28. She discussed the breakup of her marriage with him during their frequent telephone conversations. She was very disappointed but said she thought she might consider marrying again if she found a man possessing the right characteristics. Believing he matched the specification, he proposed marriage to her. She did not seem greatly surprised but thought about it for a while before accepting. He did not think it inappropriate to propose marriage when she was presumably in a vulnerable state. He felt he could help her to heal and that they had many unspoken things in common. It was not inappropriate to propose in such circumstances if the relationship were a loving one, once she had separated from her husband and had decided to divorce him.
29. Their plan for their future was that she would come to live in Australia where they would have a family and both be employed. Although he was aware of the RRT decision, he felt that as the wife of an Australian citizen she would have the right to migrate to Australia, provided she had no criminal convictions. He did not specifically recall mentioning to her that she would come to Australia, and thought it had been assumed automatically because he lives in this country. After the RRT decision, he had believed that she had been living and working unlawfully in Australia, however. She had never said to him that if she stayed in Australia unlawfully for long enough, she would be allowed to remain.
30. Since becoming involved with her, he had spent only three and a half months with her. He had not visited her in China more often because he is compelled to work to support her. She has purchased a townhouse in Shanghai, for which he pays the monthly instalments of almost $2,000, as well as providing her with an extra $1,000 a month for her living expenses. He speaks to her on the telephone twice a day, and that helps to overcome the separation.
31. He believes she will be successful in obtaining a visa, but if not, he will continue to reapply until he succeeds. In the meantime, he would return to China to visit but not to live, as he could not find his place there. There have been great changes in China and conditions would be very strange for him. He has become accustomed to the Australian sequence of life and customs. Here he is able to support his wife, but in China he would earn only about $100 to $200 a month as a cleaner and cab driver. They would live in poverty.
32. The applicant explained that he has never applied for a job in China at all, in fact when he finished school he was allocated a job by the government. He had not worked in the same area in Australia as he had in China, which would make matters difficult for him, and his age would be against him.
33. He had not thought that she would have long to wait for a spouse visa, so he had not made firm plans to return to China. It was difficult to arrange a visit in any event once the appeal to this tribunal had been lodged, and it was hard to run the business if he took long vacations.
The visa applicant’s evidence
34. The visa applicant gave evidence through a statutory declaration, which she adopted at the hearing (Exhibit A4) and orally by telephone from Shanghai, through the interpreter.
35. In her statutory declaration the visa applicant states that she was born on 29 July 1946, although her correct date of birth is more likely to be 24 May 1963, as stated in the respondent’s SoFaC (Exhibit R2). She states that she was born into a traditional well-educated family, her father being a public servant in the police department and her mother, a gynaecologist.
36. After completing high school in 1981 she played the viola in the Shanghai Broadcasting and Arts Symphony Orchestra for two years, before becoming a professional model in a Shanghai fashion company, a position she held for six years before leaving to set up her own company offering model training and other business activities.
37. In March 1993, she joined the Fashion Mark Garment Company as marketing department manager, later being sent to Australia to conduct business marketing research for that company. She arrived on 18 December 1996 holding an Australian business short-term 456 visitor visa. She returned to China in February 1997, re-entering Australia in July 1997 on a 456 visa for business purposes. She established the Fashionmark Garment Company with a partner, intending to run the business in Australia. She asked Allen Dong to help her apply for a 457 visa and subsequently engaged Peter Love as her migration agent to handle the application.
38. On 2 July 1999, she received a call from a Mandarin-speaking assistant of Peter Love who told her that her 457 visa application had been refused on 5 June 1999 and that the final day for lodging an appeal was 1 July. She was shocked by the news and considered that missing the opportunity to appeal implied that all her achievements in Australia would vanish.
39. She applied for a bridging visa E through a migration agent, Peter Coroneos, at the suggestion of her ex-boyfriend, David Zhe Shen, on 15 October 1999. The bridging visa was approved. “As I always believed I had a valid bridging visa, I needed time to heal the trauma in my heart, to revive my declining health, to adjust to the pace of my life and to find my new way of life”. To support herself she applied for a tax file number, Australian business number and business registration, then started a cleaning company on 10 August 2000.
40. She stated that she had lodged business activity statement and paid tax on time as required. She paid $1,464.21 personal tax for the year ended 30 June 2003 and $2,075.53 for the year ended 30 June 2004. She stated that she had been introduced to Falun Gong by a Mr Wan, and found that it improved her health and she was able to quit smoking. In August 2001, however, a friend (John Lee) told her that those who practise Falun Gong might be persecuted if they returned to China. The friend suggested that she apply for refugee status, saying that even if she were not imprisoned in China, the authorities would cause difficulties in her daily life. She became afraid and applied for refugee status on 20 August 2001. “Besides describing my fear and the impact from the media coverage, I didn’t provide any false or misleading information”.
41. After the application for a protection visa was refused on 11 September 2001, she lodged an appeal to the RRT. She did not attend the hearing and asked the RRT to review her case on the papers. She provided no false and misleading information. The RRT appeal was unsuccessful, as was a subsequent letter to the minister seeking intervention.
42. She stated that she believed her application for a protection visa was refused because it was insufficient, but nevertheless it was genuine because she did practise Falun Gong and feared persecution should she return to China when she lodged the refugee visa application on 20 August 2001. By the time she returned to China on 19 March 2004, she had no fear because conditions in China as regards Falun Gong had changed significantly.
43. On 5 March 2004, she married Xiaoli Xie but left him on 19 March after discovering that he had relationships with other girls. After her return to China, her present husband Ji Ye Han telephoned her frequently, being deeply concerned about her situation. She had known him since 1 September 2001 when they had met at a gathering of her friends and they had been good friends for some time.
44. The applicant proposed marriage to her on 5 April 2004, and she accepted. He came to China on 21 June 2004, leaving on 6 October. During that time they got married. She also underwent IVF, but it was unsuccessful.
45. She stated that she had always believed she had a valid bridging visa allowing her to work and live in Australia. She did not intend to remain illegally. She worked and paid tax every year until departing in 2004.
46. In cross-examination the visa applicant said she had been introduced to Falun Gong in mid-1999. She performed basic sitting meditation daily for about half an hour until about August 2000 when her business commitments caused her to reduce her practice to three or four times weekly. At that time she had not heard that she could be persecuted in China for practising Falun Gong.
47. In her signed statement of 20 December 2005 (T p133, para 8), she had said that when her friend John Lee told her she would be eligible for migration if she practised Falun Gong and applied for refugee status on that ground, she was “so delighted by the news because I was so desperate at the time”. She explained in cross-examination that she was “delighted” because she was afraid to return to China. In the same statement she had stated that “I chose to stay in Australia rather than going back to China because I spent all my savings and almost three years in a business in Australia and liked Australia very much” (T p133, para 6). Asked if that was the real reason why she stayed in Australia, she replied that the main reason was her health and the need to sort out business matters connected with her company. Her fears of persecution over Falun Gong later became a reason for her staying in Australia.
48. In the same statement she said her understanding at the time was that “the application for a refugee [visa] was a way to apply for migration to Australia and lots of Chinese in Australia obtained migration status on that ground” (T p134, para 10). She denied in cross-examination that she applied for a protection visa in order to remain in Australia for the long term. She wanted protection, though the result would have been to allow her to remain for the longer term.
49. Asked why nowhere in that statement had she stated that she feared persecution, she replied that she was afraid, adding rhetorically, “otherwise why would I apply for a protection visa?”.
50. She was then asked about her admission in that statement that “I overstayed my visa for a substantial period of time because I heard that if someone stayed in Australia longer [sic] enough that person might be allowed to migrate to Australia” (T p134, para 15). She answered that what she meant was that she applied for protection knowing that her application would take time to process. The paragraph was not correct.
51. She was then asked why the statement does not mention her claim that she lost her right to appeal against the rejection of her 457 visa application because she was not informed of the result until after the time for appeal had expired. She explained that she had only recently attempted to sort out the “time matters” in her case.
52. Mr Eteuati then asked the visa applicant about the record of her interview at the Shanghai consulate-general on 18 July 2005 (T pp145-149). According to the record, she had said that when she applied for a protection visa on the basis of Falun Gong, “My main purpose was to stay [in Australia] as well” (T p146). She explained that she had wanted to stay in Australia, but in order to obtain protection. She had not mentioned any fear of persecution because she had been unable to express herself well, “but you should be able to sort it out”, she had wanted protection. When it was pointed out to her that she was having no difficulty expressing herself now, she replied that her mode of expression had been “too simple then” to do so.
53. Her attention was then drawn to a passage in which she had been asked if her application for a refugee visa meant that she feared to return to China, to which she had replied “Not really”. She said that she had thought the question was asking her if she was really afraid at the time of the interview, not at the time of the application. She had been afraid when she lodged the application and when she appealed to the RRT.
54. The fact that she nevertheless failed to attend the RRT hearing was due to her belief that she had submitted enough information in writing and that oral evidence would not be necessary. She repeated that explanation a number of times, adding that she held that belief because she had submitted the information that she was supposed to provide. She had lost her fear of returning to China in early 2004 as a result of press reports and of the fact that some friends of hers who held protection visas returned to China and were safe. Subsequently, she had telephoned contacts in China for more information.
55. She admitted having held a bridging visa E (actually she held five of them at various times) but said she could not recall the question in her partner visa application form (T p99), “Have you held, or do you currently hold a bridging visa E?”. When it was pointed out to her that she had wrongly answered “No” to that question, she replied that it could be a mistake, and that her husband had been with her at the time, implying that he was responsible for it.
56. She said she had returned to China on 19 March 2004, not because she wanted to live there, but because she was in despair over the breakup of her marriage to Mr Xie. She was emotionally traumatised and neither her work visa nor her protection visa in Australia had worked out.
57. Asked if she had planned to apply for a partner visa as Mr Xie’s wife, she said they had not yet discussed the matter. Asked if she had even considered it, she replied that she might have done so later but they had just got married.
58. She had known Mr Xie for some time initially because they had been sharing accommodation. She had moved in with him in August 2001 and the relationship had gradually developed, taking on a romantic nature in late 2002. She denied that she had accepted Mr Han’s proposal of marriage in the belief that she would be able to live in Australia, saying that it was because she appreciated his character, not because she expected to live in Australia. If that had been her object, she could have remained with her first husband. Mr Han is a good man wherever he is and there are many Australian citizens.
59. She said she had lodged tax returns for all the years she had been working, and if the applicant had only produced assessments for the 2003 and 2004 years, that was “maybe because my husband couldn’t find them”.
60. Mr Eteuati then asked the visa applicant about an interview note dated 18 July 2005 (T p149) recording that when she had applied for her protection visa she had not had any fear of persecution if she returned to China, and her aim was simply to remain in Australia. She categorically denied making that statement.
61. She did not think her husband would be able to live in China because he would be unable to obtain suitable employment and to support her. He would barely be able to pay the rent. Further, he is an Australian citizen, not Chinese. She conceded, however, that both their families are in China. She is currently living with her parents and has no relatives in Australia. Her husband’s brother and parents are also in China.
62. In re-examination, Mr Rados drew the visa applicant’s attention to her statement of 20 December 2005, para 8 (T p133). She said she had been “delighted” because she had learned she could obtain protection and could feel safe. She had been “desperate” because the rejection of her 457 visa application was “too unfair”. Her sole motive for her protection visa application was to obtain protection permanently, and permanent residence would have ensued simply as a matter of cause and effect.
63. In relation to her statement that she had remained for a substantial period because she had heard that a person who remained long enough might be allowed to stay (T p134, para 15), she explained it as “a writing mistake maybe” and said it was not what she had meant. The meaning she had intended to convey was that everything needed to be done lawfully, and in that event the government might allow the person to stay. If a person remained in Australia for a long time, that would give the government a sufficient opportunity to investigate the genuineness of his or her claims. She had perhaps not explained herself clearly.
64. The answers to the interview questions had been written down by a woman taking notes and the material ones were wrong.
Aspects of the visa applicant’s evidence
65. The visa applicant’s evidence contained a number of unsatisfactory features, including the following:
(a)First, she made several implausible attempts to account for her prior inconsistent statements. In her signed statement of 20 December 2005 and in her interview, she had said that her main reason for applying for a protection visa was to remain in Australia. At no time had she previously referred to fears of persecution or the need to resolve business matters. When asked why she had not previously mentioned persecution fears as a factor, she asked rhetorically, “If I wasn’t scared why would I go to apply for refugee?” (transcript 15 November 2007 (ts1) p14). The answer is obvious, and her claimed unawareness of it does not fit comfortably with her earlier statements that she applied for a protection visa in order to stay in Australia.
(b)Later she said somewhat defiantly that “you should be able to sort it out” (ts1 p21), that she had wanted protection but she had expressed herself in “too simple [a way] then” (ts1 p22). That is hardly plausible, especially given her emphasis on her well-educated background (Exhibit A4).
(c)Attempting to explain her statement that she overstayed because she believed people who remain long enough might be allowed to migrate (T p134), she said that she had meant that everything needed to be done lawfully, in which case the government might allow the person to stay (transcript 16 November 2007 (ts2) p33). That is inconsistent with the sentence in the same paragraph of her statement in which she had admitted that she “became aware that was not a correct way to stay in Australia legally”. At another point she said that she meant she applied for protection knowing that her application would take time to process (ts1 p14), but that is a highly strained interpretation of the paragraph. She also said that the paragraph was incorrect and that it might be “a writing mistake” (ts2 p33), an unlikely explanation given that the passage appears in her own written and signed statement.
(d)Her explanation for saying that she was “not really” afraid to return to China was that she thought she was being asked if she was afraid at the time of the interview, not of the application (ts2 p25). That is also most unlikely, given that the question expressly related to the protection visa application.
(e)She made inconsistent statements about whether she actually believed she was remaining and working lawfully in Australia under a valid bridging visa. In her statement of 22 October 2007, she stated twice that she always believed that she had a valid bridging visa to allow her to work and live in Australia (Exhibit A4, paras 18, 29). In her earlier statement, however, she stated unambiguously that she had overstayed her visa for a substantial period of time and departed when she became aware “that was not a correct way to stay in Australia legally” (T p134).
(f)She claimed to have lodged tax returns and paid tax for the whole time she was running her business in Australia, but was able to produce assessments only for the last two of the five years of her business activity. Her explanation that “maybe” her husband had been unable to find the earlier assessments, was unconvincing, especially as her husband at no time said anything of the kind. As he was not specifically asked about it, however, I make no finding on that point.
(g)She attempted to explain the false answer in her partner visa application as to whether she had ever held a bridging visa E (T p99) by saying that “that could be a mistake” (ts2 p6) and implying that somehow it was her husband’s doing was equally tentative and unconvincing, especially as she had actually held five bridging visa Es.
(h)Again, it is difficult to give much credence to her claim that she never so much as considered the possibility of seeking a partner visa as a result of her marriage to Xiaoli Xie, let alone ever discussed it with him (ts2 p7). By the time she married Mr Xie in 2004, she had already developed extensive contacts with the migration authorities and had made repeated attempts to extend her stay in Australia, including by applying for a 457 visa and a protection visa.
(i)She repeatedly asserted that she chose not to give evidence before the RRT because she believed she had submitted sufficient material in writing and had supplied all the information requested (ts2 pp38-39). That cannot be reconciled with the fact that the RRT wrote to her on 31 July 2002 informing her that it was unable to make a favourable decision on the information already supplied and inviting her to give oral evidence and present arguments at the hearing on 17 September 2002 (T p87). She subsequently informed the RRT in writing that she did not wish to give oral evidence and would prefer the RRT to make a decision on the papers.
(j)Finally, she attempted to explain her earlier inconsistent statements about the reasons she remained in Australia, fear of persecution over Falun Gong and her belief that she would be allowed to remain if she overstayed long enough by stating that the written records were wrong and she had never made those statements (ts2 pp33, 36, 48; ts1 p26). While one would not dismiss the possibility of some human error, it is most unlikely that all the written references to those matters are incorrect, especially the ones contained in her own detailed, written and signed statement of 20 December 2005.
66. Given such a substantial number of inconsistencies and improbable statements, it is impossible to accept the visa applicant as a reliable witness.
References for the applicant
67. The applicant tendered 14 signed statements attesting to the visa applicant’s good character (Exhibit A2). Of those, two are from persons living in Australia. Mr Zhu Lin Zhou, of Campsie, states that the visa applicant is reliable and helpful, and a hard worker. Mr Lin Li, of Roselands, met the visa applicant a few years ago. Having known her a period of years, he states that she is a kind, sincere and respectful woman. She takes care of her parents and also visited Mr Li’s parents when they were sick. She also actively takes care of abandoned pets.
68. The visa applicant’s father, Mr Chao Min [surname redacted], who lives in Shanghai, states that he and his wife endeavoured to provide the best education for her with traditional Chinese values of loyalty, filial piety, humanity and love. She has grown up with these values and is very respectful and helpful towards her parents. She has contributed to the public benefit, especially by taking care of abandoned pet animals and preventing cruelty against pets. She has made their basement into a kind of a pet animal sanctuary and has purchased utensils and toys to help take care of them. “With regard to her application for a refugee visa [in] Australia she made a mistake in judgement that she should not have made if she had been more mature”, he writes.
69. Mr Guo Hua Chao, a Shanghai lawyer, writes that he has known the visa applicant since childhood and considers her to be a woman of good character, as well as an able student and musician. “With regards to [her] overstay and illegal work … in Australia as well as her application for [a] refugee visa, I believe that there must have been some dispensating [sic] reasons”, he states.
70. The other referees include another senior detective, a retired physician, a dermatologist, an accountant, business associates and a tertiary lecturer. Their letters are in similar vein to that signed by Mr Chao.
Applicant’s submissions
71. The applicant adopted as part of his submissions his statement of facts and contentions, Exhibit A1. Mr Rados noted that the respondent now concedes that the visa applicant at no time was unlawfully in Australia or worked without permission.
72. He submitted that the visa applicant passes the character test. She is a simple-minded person guided by her feelings. Although she incorrectly believed that she could remain in Australia unlawfully, she took some steps to bring herself into compliance with the law by seeking appropriate advice. She also had extenuating grounds for remaining, including her periods of sickness and her relationship problems. While her belief she was remaining unlawfully could suggest a character blemish, she did not display any contempt or disregard for the law. To meet that criterion there would have to be disregard so grave that it is for the public good to exclude the person. Mere forgetfulness would not be enough.
73. Further, she also paid income tax while in Australia and lodged her last return, paying the tax assessed, after she had returned to China.
74. While her motives for wanting to remain in Australia were mixed, and included her health situation and relationship issues, she did not fabricate her protection visa claims. She discontinued her claims to refugee status when she saw that it was safe to return to China and departed on 19 March 2004, well before a decision on her s 417 request was given.
75. As regards discretionary factors, there is no evidence of any false statements. Direction No 21 does not treat an incorrect belief in one’s unlawful status as a serious contravention. The protection visa application was weak and inadequately represented, but was not false.
76. In relation to community expectations, Mr Rados referred to Exhibit A1, pp24-26.
77. Mr Han has suffered significant hardship because of his separation from his wife, to the extent that he has had to give up working as a part-time taxi driver. Moving to China would entail a major upheaval, and it would be difficult for him to obtain work there or bring in a decent income. As Deputy President Handley had explained in Re Hossain and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 315 at [58], the tribunal should consider the nature of the relationship, the results of separation and future hardship. Here there is severe psychological and financial hardship.
78. In reply, referring to the transcript of the visa applicant’s evidence, Mr Rados stressed that her testimony showed that she had in fact been a Falun Gong practitioner, she had been worried about the persecution risk in China, had been delighted by what John Lee had told her because she believed she could obtain protection from the Commonwealth and had become “desperate” because the appeal deadline had passed. She was genuinely afraid and had applied for refugee status because she wished to obtain permanent protection.
79. After Mr Rados had completed his submissions, the applicant indicated that he wished to make some oral submissions himself.
80. He said his wife is innocent and is being unfairly treated. He believed that as an Australian he must fight for justice.
81. Her illegal stay and work were not relevant to her character. Many Chinese citizens have remained in Australia unlawfully but have not been refused visas. The key point in this case is why she stayed. It was her health and relationship problems, not any intention to do harm, and consequently it did not show any character defect. She had no intention of endangering society and worked only to survive, not to cause any detriment. She lodged tax returns and paid her income tax.
82. Mr Han said that he himself had remained and worked in Australia unlawfully, as did many of his friends, but they all received permanent residency under class 816 and no character issue was raised.
83. The visa applicant had never tried to conceal her unlawful stay or work but had presented all the facts truthfully. She had applied for a protection visa because she feared persecution in China. The statements in her application were true. The mere fact that she liked Australia did not mean that they were false. Australia is not the only country that accepts refugees. She was a Falun Gong practitioner and at that time the Chinese were persecuting that group. Her fear had been real.
84. At the Shanghai interview she had said that she did not fear to return to China and was not persecuted when she did. If she had been dishonest she would have said she was still afraid.
85. Mr Han said that he himself had applied for a protection visa and had signed a form that he could not read. He did not know if his migration agent had written in it what he had actually said. The department had not checked the truth of his statements. When he applied for permanent residency, the information he supplied in the form did not represent his true situation. There could be hundreds of thousands of other people in a similar position. Australia is a kind and lenient country and should grant a visa to the visa applicant.
Respondent’s submissions
86. On behalf of the minister, Mr Eteuati very properly conceded that the bridging visa granted to the visa applicant in connection with her 457 application had never been validly revoked because the letter informing her of its rejection was addressed in a manner that was formally defective. Consequently, she had never been unlawfully present in Australia, nor had she ever worked without permission.
87. Nevertheless, it was clear that she believed she did not have a current bridging visa, and indeed both she and her husband in their evidence at the hearing appeared to be under that impression still. It could be argued that an intent to commit an offence, even if not acted upon, says something about a person’s character. But if the person acts on that intention and does something that he or she believes to be unlawful, even though because of some technicality it is not, that would certainly reflect on character.
88. The respondent relied heavily on the visa applicant’s signed statement of 20 December 2005 (G pp133-135) and on the record of her interview at the Shanghai consulate-general on 18 July 2005 (G pp145-149). In it she admitted that she chose to stay in Australia rather than returning to China because she had spent all her savings and almost three years in her Australian business and liked Australia very much. Her friend John Lee had told her that she would be eligible for migration if she practised Falun Gong and applied for refugee status on that ground, as a friend of his had done. She said she had overstayed her visa for a substantial period because she had heard that if a person remained in Australia long enough, he or she might be allowed to settle in this country. She apologised for her mistakes and said she had endeavoured to put matters right, such as by telling the truth and expressing regret when she was interviewed by the respondent’s officer on 18 July 2005.
89. At the interview she had admitted that she did not fear to return to China and had no concerns that she might face persecution if she did (T pp146, 149).
90. Her oral evidence thus contradicted her earlier assertions and the statements she made in connection with her partner visa application. She said she was unaware of any danger attached to practising Falun Gong until John Lee told her, but it is clear that she never entertained any fear on that ground. It is even questionable whether she did practise Falun Gong. Her husband had never seen her engage in it and she had mentioned it to him only shortly before she left to return to China. She has admitted that her claim to be a Falun Gong practitioner was just a way of staying in Australia after her 457 visa application failed. John Lee had told her that it was a way of staying.
91. She repeated the same claims before the RRT and decided not to return to China even though she thought she was in Australia unlawfully. The visa applicant claims that she left when she concluded that it was no longer dangerous to return to the PRC. But her s 417 request was in December 2003, and on her account she decided some time before March 2004 that the danger had passed. But she also says that she left Australia because her first marriage had broken up. Further, she did not withdraw her s 417 request after returning to China, though she should have.
92. There is evidence that she lodged tax returns in her final two years in Australia, but no evidence in relation to earlier years.
93. Her father describes her protection visa application as an error of judgement, clearly implying that it was unfounded.
94. The applicant fails the character test, and cannot succeed on discretionary factors. She made serious false statements concerning entry or stay into or in Australia in connection with her protection visa application, contraventions serious enough to incur a prison sentence of up to 10 years. Her consistent disregard for migration law indicated a real risk of recidivism. Her husband Mr Han in his personal submissions had much to say about fraudulent attempts by PRC citizens to remain in Australia. He admitted that he had himself worked and stayed illegally and made a false protection visa application. His explanation was that many PRC citizens do it but are successful in obtaining visas, so refusing a visa to his wife would be unfair. The fact that others do it is no excuse, however, and the department would not have given him a visa if it had known of his contraventions. She also quotes John Lee (G p134) as saying that many PRC citizens make false protection visa applications. The flippant attitudes to the law of both Mr Han and the visa applicant are relevant on the question of deterrence.
95. Although the community would have some compassion for Mr Han’s position, it would be outweighed by the visa applicant’s disregard of her duty to obey the law. In her mind, and that of Mr Han, she had intentionally stayed and worked in Australia unlawfully. She had misled the department, where others make genuine applications.
96. In relation to the other considerations, visa refusal would cause hardship to Mr Han, but it needed to be borne in mind that they had been together for a total of only three and a half months. He has chosen to live apart from her and remain in Australia even if she is not granted a visa. The immediate families of the visa applicant and Mr Han are all in China. Mr Han has said that if a visa is not granted to his wife he would visit her in China. He was fully aware that she had failed to obtain a protection visa and might not be allowed to return to Australia well before he began a serious relationship with her, and that lessens the weight to be accorded to his hardship. He could live in China and in any event, is lucky to be in Australia because he himself settled in this country by unlawful means.
Application of the Law and Findings of Fact
97. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), the visa applicant passes the character test having regard to her past and present general conduct. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
…
The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 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).
…
98. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).
99. As Senior Member Ettinger has said, “There must be an honesty and integrity amongst visa applicants on which the authorities can rely so that they are treated fairly and that their claims are assessed by the same standards” (Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246, paragraph 17).
100. 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.
101. 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)).
102. 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.
103. I find that the visa applicant has committed breaches of immigration law and has made false or misleading statements in connection with visa applications (specifically her protection visa application, her RRT appeal and her s 417 request) within the contemplation of paragraph 1.9 of Direction No 21. I do not think the existence of mixed motives on the visa applicant’s part would necessarily make her statements false or misleading. But the existence of a well-founded fear of persecution is of the essence of a protection visa claim, and it would need to be the operative reason for her application for protection, which on the evidence it was not. Mr Eteuati submitted that the visa applicant’s belief was that she was staying and working in Australia unlawfully told against good character, even though by reason of a formal defect in the addressing of a departmental notification her bridging visa B had not been validly cancelled. But that proposition comes into competition with the general legal approach of not attaching adverse legal consequences to intentions, acts or omissions that do not in fact result in a breach of the law (including the law of attempts). In the absence of any guidance to the contrary from the courts or in Direction No 21, I prefer not to give significant weight to the visa applicant’s intended overstay.
104. There is some evidence of good conduct, including recent good conduct, in Exhibit A2 and in her candour at the interview and in her statement of 20 December 2005, but its impact is weakened by her prevarication at the hearing. There is no evidence that the visa applicant has committed any other types of offences in Australia, but her record of migration law violations is serious in itself, and the applicant’s character in a migration sense is central to these proceedings.
105. On the basis of all the evidence I find that the visa applicant does not pass the character test by reason of her past and present general conduct (s 501(6)(c)(ii)).
106. Having so decided, I must then consider whether to exercise my discretion under s 501(1) to decide whether to refuse or grant 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:
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Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
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107. Paragraph 2.3 sets out the primary considerations:
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In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
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Paragraph 2.4 explains:
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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
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108. 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.
109. 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 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
110. 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 false or misleading statements about her fear of persecution in connection with entry or stay in Australia in her protection visa application, before the RRT and in her s 417 request. A number of features distinguish this case from the usual situation that comes before the tribunal in cases of this type, however:
(a)The visa applicant’s initial entry involved no fraud or illegality, such as a bogus passport, a visa obtained through false representations or an incorrect incoming passenger card.
(b)Her conduct does not display the usual relentless and single-minded pursuit of permanent residency by any means, lawful or not. It is not disputed that she established a business and engaged in genuine business activity consistently with the purpose of her visa. She made several trips back to China for business purposes, rather than promptly on arrival making a false protection visa application. Her departure after her first marriage broke up was not linked to any migration purpose, such as having exhausted all other possibilities for remaining in Australia.
(c)She did not in fact stay and work unlawfully (though she was prepared to do so and thought she had done so).
(d)She did not apply for a spouse visa in relation to her first marriage. The reason is not clear, but that fact suggests that she is not merely a relentless and unscrupulous visa seeker.
(e)Her protection visa claims were not complete fabrications. While she was not a Falun Gong activist, it may be accepted that she was a practitioner, even though her husband had never seen her engage in Falun Gong meditative practices before they married or in the three and a half months they were together and was unaware of her interest until shortly before she departed. That can be accounted for by his own lack of interest in the practice and by the fact that, even in the western Christian tradition, people who meditate usually do so in a quiet and secluded location. She admitted in her statement and interview for the partner visa that at not time did she hold any fear of persecution in the event of returning to China, however.
111. On the other hand, her clumsy attempts at the hearing to retract her earlier candid admissions involved multiple attempts to mislead the tribunal. For that reason the case is distinguishable from Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766, a case with which it has much in common in other respects and in which the decision to refuse a visa was set aside.
112. Her conduct is a kind that under s 234 could incur a penalty of up to 10 years’ imprisonment and must be viewed as very serious.
113. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J pointed out, “Once a person has shown a disregard for the law, it can never be said that there is no risk of reoffending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]). 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 she is permitted to re-enter Australia. Her oral evidence was to the effect that she was innocent of any wrongdoing other than overstaying and working (which technically she had not), a position that cannot be reconciled with the documentary evidence, including her own previous statements. And as was pointed out above, her attempts to mislead the tribunal in her oral evidence do not suggest that she is rehabilitated.
114. 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 Rados sought to discount that factor, and it is true that the deterrent effect of a particular decision is impossible to prove in advance. The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
115. 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.
116. In his personal submissions, Mr Han forcefully argued that his wife should not be refused a visa because many Chinese immigrants, himself included, had obtained permanent residency by unlawful means, including the furnishing of incorrect information. The numbers involved, he estimated, could number “hundreds of thousands”. That proposition, if anything, amounts to a strong argument for reinforcing the law’s deterrent backing by refusing visas in cases such as this. I do not, however, consider that Mr Han’s personal opinions, inevitably coloured by emotion, should be held against the visa applicant.
117. While visa refusal is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. Refusing a visa in the present case would contribute to sending a deterrent message to those contemplating acts violating Australian migration law.
Expectations of the Australian Community
118. 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.
…
119. 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). Historical and other reasons have also been advanced: Re Zhou at [90] to [99].
120. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one must attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at para 7(m)).
121. 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, while most people would feel some sympathy for Mr Han’s position, I consider that community expectations weigh against the grant of a visa to the visa applicant who has engaged in repeated abuses of the migration system.
The Best Interests of the Child
122. The third primary consideration is the best interests of the child. There is no child whose interests need to be considered under this heading.
Other considerations
123. 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 that 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.
124. There is no evidence that the visa applicant retains any business or other ties to the Australian community. The immediate families of both parties, except for Mr Han himself in the visa applicant’s case, are all living in China and would not suffer any disruption or hardship if a visa were refused. The marriage appears to be genuine but, when taking account of the factors referred to in Re Hossain at para 58, it must be borne in mind that Mr Han was aware of the RRT appeal’s failure before his relationship with the visa applicant changed from friendship to something closer, and should have been aware that she might not be allowed to return. That fact lessens the weight to be given to his undoubted hardship.
125. As against that, the couple has only lived together for a total of three and a half months. Mr Han has chosen to continue living in Australia, citing his belief that employment opportunities for him in China would be limited, but he is of Chinese background and Mandarin is his first language. Alternatively, he could remain in Australia and visit the visa applicant, and indeed he has said that if a visa is refused that is what he would do.
126. Mr Rados submitted that since leaving Australia the visa applicant has shown that she has reformed and has expressed regret. She has been open and candid and she has taken full responsibility for her past conduct. While one could certainly say that in connection with her oral and written statements in 2005 in connection with the partner visa application, at the hearing she attempted to explain away and retract her previous admissions in relation to the protection visa application, the RRT appeal and the s 417 request. Consequently, it is impossible to conclude that there is evidence of rehabilitation and recent good conduct in relation to migration law.
127. The application is for provisional and permanent visas. I find that the primary considerations of community protection and expectations outweigh the other considerations in this case.
128. At the same time, I think it appropriate to add a rider. This case in my view has a good deal in common with Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1331 at para 72. As in that case, I do not consider that the degree of culpability involved is such that the couple should necessarily be denied for all time the possibility of living together in Australia. As I understand it, there is nothing in the Act or regulations to prevent an offshore visa applicant who has been rejected on s 501 grounds from being the subject of a new application when further evidence becomes available, or for any other reason. As I have said above, there are material differences between the facts here involved and those of the usual s 501 character case that comes before the tribunal. If that foundation can be further built upon by more evidence in the future, it may be that a decision-maker considering a new application might come to a different conclusion from the one I have reached. At present, however, the facts require exercising the discretion in s 501 in favour of refusing a visa.
129. The decision under review is affirmed.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .......................[sgd]....................................................
R. Wallace, AssociateDate/s of Hearing: 15 & 16 November 2007, 18 January 2008
Date of Decision: 20 February 2008Solicitor for the Applicant: Mr Ivan Rados, Chancellor & Rados
Solicitor for the Respondent: Mr Tigiilagi Eteuati, Clayton Utz
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