Han-Ching Lu and Minister for Immigration and Border Protection

[2014] AATA 642

[2014] AATA 642 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3804
Re	Han-Ching Lu
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	3 September 2014
Place	Brisbane

1.          The decision under review is set aside. The Tribunal decides in substitution that the applicant’s visa application should not be refused on character grounds.

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Senior Member Bernard J McCabe

CATCHWORDS

SECTION 501 VISA REFUSAL – Application for second Working Holiday visa – Conviction for fraud in Taiwan – Declared conviction upon arrival in Australia – Failed to disclose conviction on visa application forms – Honesty and integrity of applicant in question – Limited information about conviction – Application of Ministerial Direction – Protection of Australian community – Proportionality – Decision set aside and substituted – Visa application should not be refused on character grounds.

LEGISLATION

Migration Act 1958 (Cth) ss 500(6H); 501

CASES

Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113

SECONDARY MATERIALS

Direction No 55 – Visa refusal and cancellation under s 501

REASONS FOR DECISION

Senior Member Bernard J McCabe

3 September 2014

1. Han-Ching Lu is from Taiwan. In 2011, he was convicted and sentenced to 14 months in gaol in respect of a fraud that he committed in that country. He subsequently applied for, and was granted, the Working Holiday (Temporary) (Class TZ) visa, which permitted him to travel to Australia and remain here for a period of twelve months. He did not disclose his fraud conviction in the course of the application process. He did disclose the conviction when he landed in Australia in 2012, but a decision was made by immigration officers at the border to allow him to enter the country. When that visa was about to expire, he applied for a second Working Holiday visa – which lasts for twelve months – but did not mention the conviction. The Minister relied on s 501 of the Migration Act 1958 (Cth) (“the Act”) to refuse the visa on character grounds. Mr Lu has asked the Tribunal to reconsider that decision.

2. Mr Lu’s fraud conviction is recorded in a police certificate provided by the Taiwanese authorities: exhibit one at p 53. The certificate says Mr Lu was convicted of “an offence of fraud” in Taiwan on 17 June 2011 and was sentenced to 14 months in gaol.

   
   

   The certificate noted the prison sentence might be commuted if the applicant paid a fine instead. That is what happened, according to Mr Lu (who gave evidence at the hearing through an interpreter): he was not sent to gaol, although he was required to attend a police station each day for two months where he was confined but not imprisoned.

   
   

   He told immigration officers that he paid a substantial fine in the order of $360,000 Taiwanese dollars in order to avoid spending time in gaol. He said in oral evidence that he borrowed the money to pay the fine from his family and remains indebted to them.

3. We know little about the circumstances or details of the offence. Mr Lu told immigration officers when he entered the country that it involved “cheating in business” and related to “a Taiwanese internet scamming syndicate operating internationally”: exhibit one at p 87. We do not know whether it was a large conspiracy or if Mr Lu was a prominent conspirator. We do not know how many people were hurt by its activities or the scale of any losses they might have sustained. We do not know if it was short-lived or of long duration. We do not know if it was sophisticated or easily detected. Mr Lu did not provide further information in advance of the hearing that would enable me to form a clear understanding of what he did, and why. Given the strictures of s 500(6H) of the Act, it was not possible to question Mr Lu about those matters at the hearing.

4. Mr Lu said at the hearing he did not fill out the application for a visa in 2012 which asked about a criminal record. He does not speak English, so he had a friend do it for him. Mr Lu said the friend did not mention there was a question on any of the forms about convictions. Mr Lu says he did not intentionally mislead the Minister: Mr Lu claims he was simply unaware he was required to make a disclosure of those matters.

   
   

   He points out that when asked about convictions at the airport, he gave a truthful answer. He offers essentially the same explanation for his failure to disclose convictions in the application for a second visa. He sought that application after working on a farm in Australia for a time. He did not complete the forms himself and relied on others to tell him what information was required.

5. I was invited to infer that Mr Lu’s failure to disclose the convictions in the various forms reflects on his honesty and integrity. I am not persuaded that is so. Mr Lu does not speak or read English, and I have no reason to doubt he relied on others to complete the paperwork. It is unclear why the scribes in each case would have failed to address the questions over convictions with Mr Lu when they clearly answered all of the other questions correctly. But I do not think I should draw an adverse inference from that apparent anomaly given Mr Lu was honest when he was squarely asked about the issue as he landed in Australia. If he were minded to be dishonest, presumably he would have been dishonest more or less consistently.

6. Mr Lu has not been in any trouble while living and working in Australia. He has been gainfully employed and he provided evidence that he has paid all of his taxes. It appears he has complied with his obligations under the visa upon which he was admitted. He says he wants to remain in Australia for a further period because he has made friends here and enjoys the lifestyle. He says his family members support him in that plan because he has become more self-reliant and he has been able to put some distance between himself and the bad crowd with whom he had been running when he lived in Taiwan. He also wants to make money so he can repay the debt to his family. He has a brother in Australia who is also here temporarily. He does not have any other family in this country.

   EXERCISE OF THE DISCRETION TO REFUSE A VISA

7. There is no doubt the discretion in s 501 to refuse a visa on character grounds has been enlivened. Mr Lu has a substantial criminal record within the meaning of s 501(7) because he has been sentenced to a period of imprisonment of 14 months. It is irrelevant that he did not serve any time in gaol: as the Full Federal Court explained in
   Brown v Minister for Immigration and Citizenship(2010) 183 FCR 113, 117 at [114] per Nicholas J, the fact he was sentenced to a term of imprisonment for longer than twelve months satisfies the requirements of the sub-section regardless of whether the sentence was executed. (I did question whether the sentence in this case was more in the nature of a fine with a default term of imprisonment, which might be different. The only evidence available on the point was the police certificate at exhibit one, p 53. That certificate refers to the possibility of the sentence being commuted to fines. The applicant’s interpreter confirmed the accuracy of the translation. The combination of that document and
   Mr Lu’s evidence did not leave me with the impression that prison was merely the default option if he did not pay a fine.)

8. I am obliged to have regard to the contents of Ministerial Direction No 55 (“the Direction”), which deals with visa refusal and cancellation under s 501. The Direction was issued pursuant to s 499 of the Act. It includes a lengthy preamble that sets out objectives and general principles which inform the exercise of the discretion.
   The Minister directed my attention to clause 6.3(5) in particular, which provides:

   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

9. I should say at once that Mr Lu has already been admitted to Australia after (belatedly) declaring his criminal record at the point of entry. There is also no suggestion at this point that he is to remain permanently in this country. He is merely seeking a fresh working holiday visa that would be issued for a finite period of no more than twelve months.

10. The decision in question is a decision to refuse a visa rather than a decision to cancel an existing visa. As a consequence, I must have regard to the matters referred to in Part B of the Direction. Part B sets out three primary considerations in clause 11 and refers to a non-exhaustive list of other consideration in clause 12 that count for less than the primary considerations. I will begin by discussing the primary considerations.

11. As it happens, there is only one primary consideration that is relevant here: Protection of the Australian community (cl 11.1). I deal with that below. The other considerations

    
    

    (The best interests of minor children in Australia affected by the decision: cl 11.2 and International non-refoulement obligations: cl 11.3) are not relevant.

    Protection of the Australian community

12. Clause 11.1 says “there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct”. The clause then goes on to require the decision-maker to consider:

    (a)the nature and seriousness of the person’s conduct to date; and

    (b)The risk to the community should the person commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct

13. We do not know a great deal about Mr Lu’s offence. He has not adequately explained what occurred. But I can make the following observations on the basis of the evidence that was admissible at the hearing:

    ·firstly, the offence was a fraud based on an internet scam. It did not involve violence or sexual abuse. While serious, it is not in the most serious category of offences. Having said that, we do not know precisely what Mr Lu’s role was in the scam. Did it involve other individuals, and how senior was Mr Lu relative to them? Over what period did the scam take place? How many people were affected, and at what cost? Was the conspiracy large and sophisticated, or small and unsuccessful?

    ·It is unclear whether the scam targeted vulnerable members of the community, such as minors or the elderly or the disabled. It is also unclear whether the scam targeted government officials who were performing their duties. Many internet scams are directed against corporations, consumers and the gullible, so it would be necessary to know more about the circumstances of the offence before assuming the worst in this regard.

    ·

    The sentence imposed by the court is not especially onerous when compared to what one might expect in other serious crimes. The fact the sentence was suspended or commuted on the payment of a fine tends to suggest it is less serious (although there was some confusing evidence from Mr Lu during

    
    

    cross-examination to the effect he was required to attend a police station every day for a two month period – but he insisted he was not imprisoned). Mr Sharpe, for the Minister, attempted to quantify the fine in Australian dollars for comparison purposes. He suggested it was at least equal to the amount of Mr Lu’s earnings during the period. That evidence suggests the fine was reasonably large.

    ·There is only one offence, although we do not know whether it related to an isolated act or a course of conduct.

    ·Mr Lu did provide false information to the Minister about his criminal record. Visa application forms completed in his name do not disclose his criminal record. But I have already noted I do not think that evidence suggests anything about the applicant’s integrity and honesty, given he did not fill out the forms himself and had no first-hand knowledge of their contents – and in light of the fact he was honest when asked about his criminal record when he arrived in Australia.

14. While I am comfortable concluding the applicant’s conduct is likely to fall towards the less serious end of the spectrum of serious offences in light of the comparatively lenient sentence (which was wholly or substantially commuted), and the fact there is no suggestion the offence involved violence or other heinous acts, doubts must remain given the absence of a satisfactory explanation for precisely what occurred.

    The risk to the Australian community should Mr Lu commit further offences or engage in other serious conduct

15. Clause 11.1.2 notes the Australian community’s tolerance of risk of further offences is likely to fall as the seriousness of the harm increases. I have already observed that the danger of fraud is less frightening than a crime involving violence or sexual offences or illegal drugs. It follows the Australian community might be more tolerant of Mr Lu and the risks he presents than it would be if he had committed other offences. The fact Mr Lu is not seeking to remain here indefinitely might also prompt a more relaxed attitude: he is only seeking a further working holiday visa which is of limited duration. There are no particularly strong or compassionate grounds for granting the visa. He just wants to stay and make some money in an environment removed from bad influences that surrounded him at home.

16. Having said that, it is difficult to complete that risk analysis in the absence of detailed information about the offence he committed. I have not been provided with information from independent and authoritative sources about his rehabilitation (although he did provide supportive short references from friends in Australia). I note he was a young man when the offence was committed, and he explained he was impressionable and under the influence of a bad element. His age counts in his favour. So does the fact he has behaved and worked hard while he has been in Australia. He appears to be making a genuine attempt to turn his life around and make amends for his offence. That is all to the good.

17. The fact Mr Lu’s offence – whatever the details – was committed on the internet raises an interesting question. If he were minded to return to that sort of offence, it would not make much difference whether he were in Australia or back home in Taiwan: such is the nature of the internet. Requiring him to leave the country would not make Australians any safer from that sort of offending. Mr Sharpe, for the Minister, argued Australians might be in greater danger if Mr Lu were to remain in their midst because he might identify opportunities or vulnerabilities that would help him commit further frauds.
    I doubt that, not least because Mr Lu speaks almost no English and is therefore unlikely to absorb much vital information about Australia during the short life of a working visa.

18. The evidence before me suggests there is a relatively low risk of Mr Lu engaging in further bad behaviour. That risk would probably be acceptable to the Australian community – although I must emphasise my conclusion does not take into account all of the details of Mr Lu’s offence because that evidence was not provided.

    Does the need to protect the Australian community count against Mr Lu?

19. What we know of Mr Lu’s offence suggests it is not especially serious, but there is a problem: we do not have all the details. The offending might be at the very bottom end of the range of serious behaviour. I do not think I can assume that – although the relatively short commuted sentence suggests the offence should not count heavily against Mr Lu either. I would make essentially the same remarks about the danger of further bad behaviour: I am satisfied from the material before me there is a relatively low risk, although if I had had more details and independent evidence I might have taken an even more robust view.

20. It follows the first (and in this case, the only relevant) primary consideration counts against Mr Lu, but not especially heavily.

    Other considerations

21. None of the other considerations that were expressly identified in clause 12 count for or against Mr Lu. He does not have immediate family members in Australia (apart from his brother who is only present on a short term visa) whose interests might be affected by a visa refusal. It is unclear whether any of the victims of his offence reside in this country, but it is also unclear that his presence here would have a material impact on any Australian victims. I am not aware of any other considerations that might be relevant.

    The balancing process and the exercise of the discretion

22. I am satisfied the immigration officers who allowed Mr Lu into the country after he disclosed his criminal record made the right call on the evidence available to them.
    I think the evidence before me, although unsatisfactory and incomplete in some respects, suggests the same outcome is appropriate in these proceedings. While I have concluded that, on balance, the factors referred to in the Direction count weakly against Mr Lu, I do not think they require the exercise of the discretion against him. While accepting the factors in the Direction point to an adverse outcome for Mr Lu, that does not mean an adverse outcome is inevitable. I am not satisfied the case against Mr Lu is such that the exercise of the discretion against him is warranted or proportionate. Mr Lu is here and he appears to be making a contribution. He should be allowed to continue doing so, at least for the relatively short life of the visa for which he has applied.

    CONCLUSION

23. The decision to refuse Mr Lu’s visa on character grounds under s 501 of the Migration Act 1958 (Cth) is set aside. The Tribunal decides in substitution that the applicant’s visa application should not be refused on character grounds.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated   3 September 2014

Date of hearing	21 August 2014
Applicant	In person
Solicitors for the Respondent	Sparke Helmore Lawyers