Hannington and Minister for Immigration and Citizenship
[2008] AATA 581
•7 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 581
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2007/4647
GENERAL ADMINISTRATION DIVISION )
Re LINDSAY ALAN HANNINGTON Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal
Mr Julian Block, Deputy President
Date7 July 2008
PlaceSydney
Decision The decision under review is affirmed. ..................[sgd]............................
Mr J Block
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – visa applicant overseas – history of serious breaches of migration law – visa applicant lodged fabricated claim for protection visa – visa applicant lodged fabricated section 417 application to the Minister - character test – discretion under part 2 of Direction 21 – decision under review is affirmed
Migration Act 1958 – Section 501
Re Carini and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 90
Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Kaufman and Minister for Immigration and Multicultural Affairs (AAT 11712A, 23 November 1998)
Re Tran and Department of Immigration and Multicultural Affairs (AAT 12357, 30 October 1997)
Re Chea and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1315
Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Sneddon and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1269
Re D'Mellow and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 120
Re Msumba v Department of Immigration and Multicultural Affairs [2000] AATA 87
Re Tremlett v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244
Re Gorges v Minister for Immigration and Multicultural Affairs [2002] AATA 89
Re Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156
Re Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575
Re Pham and Minister for Immigration and Citizenship [2007] AATA 1837
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Re Au and Minister for Immigration and Citizenship [2008] AATA 28
Re McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under Section 501 (Direction No. 21 of 2001)
REASONS FOR DECISION
7 July 2008
Mr Julian Block, Deputy President
Part A: Background and Preliminary
1. The decision under review is the refusal by a delegate of the Respondent to grant a Partner (Provisional) (Class UF) visa (“the visa”) to Ms Xiu Fang Xu (“the Visa Applicant”); the Visa Applicant’s application was sponsored by her husband Mr Lindsay Alan Hannington, who is the Applicant; (the Applicant is referred to as the “review applicant” in the amended Statement of Facts and Contentions submitted by the Applicant and date stamped in the Tribunal Registry on 18 June 2008 and the terms “Applicant” and “review applicant” are thus used interchangeably; the Applicant’s amended Statement of Facts and Contentions aforesaid is referred to as “ASFC”).
2. The Applicant was represented by Mr David Prince of KAH Lawyers, while the Respondent was represented by Ms Therese Quinn of DLA Phillips Fox, Lawyers.
3. The Tribunal had before it the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
Exhibit A1; a witness statement by the Applicant dated 16 June 2008.
Exhibit A2; a witness statement by Dr Gary Roberts dated 17 June 2008.
4. The Respondent’s Statement of Facts and Contentions dated 28 February 2008 contains the usual helpful summary of the relevant facts; I refer in this context to clauses 2 to 9, reading (without footnotes) as follows:
FACTS
2The visa applicant is a citizen of China born on 10 February 1964.
3The visa applicant first entered Australia on 27 April 1998. She departed Australia on 3 May 1998 and re-entered on 7 May 1998. She entered on Tourist Visas on both occasions. Subsequent to her arrival on 7 May 1998, the visa applicant did not depart Australia until 25 February 2006. Her immigration status during that period was as follows:
3.1The visa applicant overstayed her tourist visa, which expired on 25 May 1998.
3.2The visa applicant was an unlawful non-citizen until 15 July 1998, when she was granted a bridging visa C. That was a period of some 51 days.
3.3On 1 July 1998, the visa applicant applied for a protection visa, claiming to fear persecution in China because of her political opinion.
3.4Her application was refused on 30 October 1998, and she applied to the Refugee Review Tribunal (RRT) for review of the decision.
3.5The visa applicant attended a hearing at the RRT on 30 March 1999, and the RRT made a decision affirming the decision of the delegate on 16 April 1999.
3.6The visa applicant applied to the Minister for intervention under section 417 of the Act in June 1999.
3.7In the meantime, the visa applicant's bridging visa C had expired on 24 May 1999. She was granted a bridging visa E on 24 June 1999, which expired on 30 November 1999.
3.8The visa applicant remained illegally in Australia from 1 December 1999 until her departure on 25 February 2006.
4On 2 October 2005 the visa applicant married the review applicant in Sydney.
5The visa applicant departed Australia on 25 February 2006, and on 27 February 2006 lodged an application for a Partner (Provisional)(Class UF) Visa on the basis of her marriage to the review applicant, who is an Australian citizen by birth.
6A notice of intention to consider refusing the application for character reasons was sent to the visa applicant's migration agent on 15 November 2006, by email. A response was provided by the migration agent on 11 December 2006.
7A delegate of the respondent decided to refuse the application for a Partner (Provisional)(Class UF) visa on 7 June 2007, and this decision was sent to the visa applicant's migration agent by letter dated 20 June 2007.
8The review applicant applied to the Tribunal for an extension of time to lodge an application to review the decision on 20 September 2007. The application for an extension of time was granted on 15 October 2007.
9The issue before the Tribunal is whether to affirm or set aside the decision of the delegate to refuse the application for a Partner (Provisional)(Class UF) visa, applying section 501 of the Act.
5. In this particular instance, it is desirable in the interests of balance and also because it is so remarkably comprehensive as to facts which are agreed, to draw on ASFC; I refer in this context to clauses 4 to 41 reading (also without footnotes) as follows:
FACTS (the notation “AF” indicates that an Agreed Fact as between the parties)
4.AF: The visa applicant is a citizen of the People’s Republic of China born on 10 February 1964. Ms Xu is currently 44 years of age.
Visitor Visa History
5.Mr Hannington was born in Australia on 20 October 1949 and is an Australian citizen by birth. He is currently 58 years of age.
6.AF: Ms Xu first entered Australia on 27 April 1998 on a subclass 676 Visitor visa that allowed a single entry to Australia and stay until 8 May 1998.
7.On 1 May 1998 Ms Xu was granted a further subclass 676 Visitor visa by the Brisbane office of the Respondent. That visa allowed multiple entry and stay in to Australia until 25 May 1998 [sic]
8.AF: Ms Xu departed Australia on 3 May 1998 and re-entered on 7 May 1998 with stay allowed until 25 May 1998.
9.Ms Xu overstayed her visitor visa and was an unlawful non-citizen between 26 May 1998 and 1 July 1998, being a period of 7 days.
10.AF: On 1 July 1998 Ms Xu lodged an application for a Protection visa with the Onshore Protection office of the Respondent claiming to fear persecution as a result of her actual and imputed political opinion.
11.AF: Ms Xu’s protection visa application was refused by a delegate of the Respondent on 30 October 1998.
12.AF: Ms Xu appealed that decision to the Refugee Review Tribunal (RRT) on 1 December 1998.
13.AF: On 30 March 1999 Ms Xu attended an oral hearing before the RRT and on 16 April 1999 the RRT made a decision affirming the decision of the delegate taken on 30 October 1998 to refuse the visa application.
14.In affirming the decision of the delegate the RRT found as follows:
(a)The RRT accepted Ms Xu’s claims, as clarified/amended at the oral hearing;
(b)Ms Xu impressed the RRT as a credible witness;
(c)Ms Xu gave evidence in a frank and convincing manner;
(d)The RRT did not accept what she infers from her claims (being that she would face serious harm from her then Chinese husband should she return to China in the reasonably foreseeable future);
(e)Ms Xu’s subjective fear does not appear to be related to the Refugees Convention and Protocol.
15.AF: In a letter dated 31 May 1999 Ms Xu applied to the Minister for Immigration and the personal intervention powers contained in section 417 of the Act.
16.AF: Ms Xu’s Bridging C visa had expired on 24 May 1999. On 24 June 1999 Ms Xu was granted a Bridging E visa valid until 30 November 1999.
17.The Minister refused the section 417 request in approximately September 1999.
18.AF: Ms Xu lived in Australia as an unlawful non-citizen from 1 December 1999 (when her last Bridging E visa expired) until her voluntary departure from Australia on 25 February 2006.
19.AF: At no point in time was Ms Xu ever granted permission to work by the Respondent or the Respondent’s delegate.
Spousal Relationship
20.Mr Hannington and Ms Xu first met in January 2000 after being introduced by Ms Xu’s sister, Lucy.
21.The couple started dating and regularly seeing each other until a misunderstanding in approximately March 2000 led Ms Xu to end the relationship.
22.The couple had irregular and brief telephone contact from time to time between March and October 2000 when they met again by chance at the Octoberfest Carnival held at Fairfield Showground.
23.The couple resumed their relationship and dated regularly from October 2000 until August 2003.
24.On 22 August 2003 Ms Xu moved into Mr Hannington’s home in the lower Blue Mountains and they lived together as a de facto couple until their marriage.
25.AF: The couple were married on 2 October 2005.
Spouse Visa Application
26.On 26 February 2006 Ms Xu and Mr Hannington voluntarily departed Australia together through Sydney international airport.
27.At Mascot international airport Ms Xu was questioned by officers of the Respondent on the basis that she did not hold a visa. In response to that questioning Ms Xu admitted the following:
(a)That she was unlawful in Australia following the intentional overstay of her visa;
(b)She had worked illegally in Australia between 1998-2002 in a clothing workshop;
(c)She had married an Australian citizen.
28.AF: On 27 February 2006 Ms Xu lodged an application for a Partner (Provisional)(Class UF) visa with the Australian Consulate-General in the People’s Republic of China. Ms Xu was sponsored for that visa by her Australian Citizen husband, Mr Hannington. Ms Xu’s biological daughter, Miss Wanqing Chen was also included in the application as a member of Ms Xu’s family unit. Miss Chen was born on 3 March 1988, was 18 years of age at the time of visa application and is currently 20 years of age.
29.An officer from the Consulate-General interviewed Mr Hannington over the phone on 19 July 2006, and separately with Ms Xu on the same day.
30.The interviewing officer at the Consulate-General accepted that the interview evidence was consistent and it was accepted that Ms Xu and Mr Hannington had a genuine and ongoing spousal relationship.
31.As a result of Ms Xu’s adverse visa history in Australia the application was referred to the Character Assessment Unit of the Respondent in Brisbane.
32.AF: On 15 November 2006 a delegate of the Respondent forwarded to Ms Xu’s migration agent by email a Notice of Intention to consider refusing the visa application on character grounds.
33.AF: A response was provided to the delegate by the migration agent on 11 December 2006.
34.AF: On or about 7 June 2007 a delegate of the Respondent decided to refuse the visa application on the basis that the visa applicant did not satisfy the provisions of section 501(1) of the Migration Act 1958 (the Act), that decision being sent to Ms Xu’s migration agent by letter dated 20 June 2007.
35.Mr Hannington mistakenly sought to appeal the visa refusal to the Migration Review Tribunal (MRT) and a delay of some 6 weeks occurred before the MRT advised Mr Hannington that they did not have jurisdiction to consider the appeal.
36.AF: On 20 September 2007 Mr Hannington filed the current appeal with the Tribunal seeking to review the visa refusal decision as well as seeking an extension to time in which to file the appeal.
Return to China
37.Since returning to China Ms Xu has completed training in the occupation of beautician.
38.Since completing that training Ms Xu has been gainfully employed as a beautician.
Mr Hannington’s medical conditions
39.Mr Hannington suffers from a range of medical conditions, including:
(a)Type II diabetes (diagnosed in 2003). This condition is currently supposed to be managed through strict dietary adherence, exercise and medication;
(b)Hypertension and hyperlipidemia;
(c)An adverse cardiac history (with one heart attack having occurred in the past).
40.Mr Hannington’s hypertension and hyperlipidemia, in conjunction with his diabetes, places him in a high risk cardiac state with an increased concern of coronary artery disease, stroke and the like.
41.The existence of stress is also a significant factor in Mr Hannington’s increased cardiac risk state and has a deleterious effect on his diabetic control.
6. Oral evidence was given by each of the Applicant, the Visa Applicant (by telephone link to China and with the aid of an interpreter in the Mandarin language) and by the Applicant’s mother, Mrs Nelson. Witness statements in respect of the Visa Applicant and Mrs Nelson were not furnished, but Ms Quinn agreed to dispense with this requirement. More particularly and in respect of the Visa Applicant, ASFC, and in particular its contents under the head of “Admissions by the Visa Applicant (Ms Xu)” contained in the clauses 43 to 48, when read with its content as referred to in clause 5, could be said to constitute something very like a witness statement.
7. Mr Prince commenced with a brief summary and in which he outlined some of the relevant facts. It is not necessary for the Tribunal to refer to that opening address, but the Tribunal notes that it found it helpful.
Part B: The Evidence of the Applicant
8. The evidence in chief in respect of the Applicant consisted in the main, but not entirely, of his witness statement, Exhibit A1, and which he confirmed as true and correct. Much of its content is of limited relevance; so as to avoid burdening the body of these reasons unnecessarily, its content is included not in the body of these reasons, but as an annexure marked “A”.
9. The Applicant is 58 years old; he lives in the Blue Mountains in a residence situated on one acre and which is not mortgaged and is worth, so he said, between $400,000.00 and $450,000.00. He is a taxi driver who, according to tax returns included in the T-documents, earns about $17,000.00 per annum.
10. The Applicant had never prior to his marriage to the Visa Applicant been married although, as appears from Exhibit A1, he was previously involved in a relationship which ended in 1991.
11. The Applicant met the Visa Applicant in early 2000 and they began to go out together. When in March 2000 the Visa Applicant informed the Applicant of the fact that she was not legally in Australia, and told him of her immigration history prior to meeting with him, he was concerned. It was, however, the Visa Applicant who then ended the relationship at or about that time.
12. The relationship began again later that year (in October 2000), and the Applicant and the Visa Applicant resumed going out together. The relationship became deeper and in August 2003 the Visa Applicant moved in with the Applicant; they were married in October 2005 after the Visa Applicant had obtained a divorce from her first husband who was at all relevant times, and still is, in China, and who is referred to in these reasons as “the ex-husband”.
13. Having married the Visa Applicant in October 2005, the Applicant and the Visa Applicant went to China on 26 February 2006, and on 27 February 2006 submitted the visa application referred to in clause 1.
14. As I have noted, much of the Applicant’s statement in Exhibit A1 is of limited relevance. It is, after all, not his character which is in issue in this matter.
15. The Applicant said that he was very much in love with the Visa Applicant and that she “means the world” to him. He said that since their trip to China in February 2006, he has visited China on one other occasion.
16. The Applicant said that since he has been separated from the Visa Applicant, his health has deteriorated. He was diagnosed with diabetes in 2003 by Dr Roberts (Exhibit A2), and since which time he has been obliged to take medication and to be careful about diet and exercise. His evidence was that the medication required does not involve injections of insulin.
17. The Applicant’s evidence made it clear that, from a very early stage, he knew of the Visa Applicant’s immigration history, and the fact that her presence in Australia was unlawful.
18. The Applicant complained at some length that without the help of the Visa Applicant he does not look after himself properly, and that his diet and exercise regime is, at times, not what it should be. At the same time, he said that he works during the week but not during weekends and that during weekends he puts in many hours of hard, physical work into his acre property which slopes downwards, and so that his difficulties as to exercise are almost certainly not nearly as serious as he would have the Tribunal suppose. It is in this context relevant to note that ASFC in clauses 39 and following (and quoted earlier in these reasons) referred to the medical condition of the Applicant in terms which would suggest that his health condition is poor; reference was made in this context to hypertension and a heart condition and also a heart attack; suffice it to say that there was no evidence of any kind and whether by the Applicant or by Dr Roberts (Exhibit A2) as to anything other than diabetes which is manageable without insulin. The Applicant presented as a fit and strong man and his evidence as to the hard work performed by him on his one acre property would not be possible if his health was as bad as ASFC seeks to suggest. The property apparently slopes very considerably and so that the effort involved takes many hours over weekends.
19. As a taxi driver, the Applicant works either the night shift or the day shift but, as set out previously, does not work during weekends. He does not own a taxi and thus leases one. He said that he has given the Visa Applicant some money when he visited her in China but said that the amounts involved were “not much”; he did say that in 2006 he left an amount of $2,500.00 with the Visa Applicant to assist her with the cost of her daughter’s education. (The Visa Applicant has a daughter, Wanqing Chen, who is now 20 and lives with the Visa Applicant in Shanghai; she is referred to in these reasons as “the daughter”; in the visa application, the Visa Applicant seeks a visa also for her daughter).
20. The Applicant lives about 35km from his mother; he is close to her and sees her once or twice a week.
21. The Applicant said that it had been suggested to him that a psychological report was desirable, but that he rejected that suggestion on the basis that the expense was not warranted.
22. The Applicant was asked about the visa application and particularly having regard to the fact that it was prepared in Australia, and was taken by him and the Visa Applicant to Shanghai and submitted in Shanghai. He said it was received a few days before they left for Shanghai, but that he considered it cursorily and did not give it sufficient attention.
23. When asked why he did not stop the Visa Applicant from working unlawfully, the Applicant said that she is head-strong and that she wanted to contribute and, in any event, required something to do.
24. The remainder of this Part B relates in the main to the cross-examination of the Applicant, and also includes evidence given in answer to questions by the Tribunal.
25. When Ms Quinn asked him what he would do if the decision were affirmed, the Applicant said that he would cross that bridge if he had to do so.
26. It was put to the Applicant by the Tribunal that in this eventuality New Zealand might be a viable option, in that he could easily obtain residence in New Zealand and could drive a taxi there. It was suggested that in relation to the Visa Applicant, she might be permitted to live with him in New Zealand because she has not offended against that country’s laws.
27. The Applicant said that he would not want to live in New Zealand and nor would the Visa Applicant wish to do so. As he put it, “it closes at 5.30 pm”; (it was accepted that for the Applicant to be reunited with the Visa Applicant in China is almost certainly not practicably feasible). (It might be thought that life in the Blue Mountains is in general terms comparable with life in New Zealand).
28. It was put to the Applicant that the visa was sought some six years after the Applicant had become aware of the Visa Applicant’s situation. He was asked whether he encouraged her to apply, and he replied to the effect that the Visa Applicant had always said that she wanted to rectify the situation and wanted to do so when she had obtained a divorce from her ex-husband. When asked whether the Visa Applicant had made attempts to divorce her ex-husband, he said that as far as he knew, she had taken some steps but had been “taken for money”, and that eventually her sister in Shanghai had commenced proceedings. He said that the ex-husband wanted 150,000 Yuan (presumably a reference to RMB) in order to consent to a divorce.
29. It was at this stage that Mr Prince said that in China a divorce can be obtained only by consent, which can result in financial demands by the party who does not desire a divorce. At this stage also, Mr Prince explained that in relation to New Zealand the situation is somewhat more complex than was previously the case, the law having been altered in 2001. Mr Prince said that if the Applicant went to New Zealand he might not, at a later time, obtain social security benefits, although he accepted that at least in the meantime the Applicant would be entitled to reside there and drive a taxi there. Mr Prince said also that in relation to the Visa Applicant, and in respect of New Zealand, New Zealand has enacted laws similar to those in Australia and so that, although the Visa Applicant had not offended against New Zealand law, it is possible that her character might be in issue because of her behaviour in Australia. This aspect was not canvassed in any detail and was left on the basis that New Zealand might perhaps constitute a viable option. It was not necessary to canvass it in any greater detail more particularly having regard to the fact that, as set out previously, the Applicant had made it clear that he and the Visa Applicant would not wish to live there.
30. The Applicant was asked whether the Visa Applicant ever told him why she had stayed in Australia illegally; his answer was that she had had trouble with her ex-husband and that she loved Australia.
31. The Applicant appears to be a decent man and in broad terms his evidence can be accepted. He knew of the Visa Applicant’s difficulties and situation at a very early stage. His health is, at least according to his evidence, a matter of concern to him (although not remotely as much as is suggested in ASFC), but it must be remembered that diabetes was diagnosed in 2003 and is not, at least at this time, so serious that insulin is required; moreover it would not be difficult for the Applicant to be careful as to his diet. His complaint as to a lack of exercise cannot be accepted if only because his work on his property is clearly sufficiently strenuous.
Part C: The Evidence of Mrs Dorothy Nelson
32. Mrs Nelson was born in May 1923. The fact that her name differs from that of her son, the Applicant, arises from the fact that she was divorced and remarried. She sees her son regularly and is close to him. The same is so in respect of her other child, a daughter.
33. Mrs Nelson’s evidence was not of much assistance. She knew of the Visa Applicant’s immigration problems from an early stage. She approves of the Visa Applicant and thinks that the Visa Applicant would care for the Applicant better than he does himself. She said also that she thought that the Applicant might be on the verge of depression (there was no medical evidence to this effect and the Applicant had made no such suggestion).
Part D: The Visa Applicant’s Evidence – Evidence in Chief
34. The Visa Applicant confirmed that she had received ASFC and confirmed its content under the head of Facts (clauses 4 to 41), and confirmed that all of those clauses were true and correct.
35. The Visa Applicant was next taken to and confirmed the content of ASFC under the head of “Admissions by the Visa Applicant (Ms Xu)” contained in clauses 43 to 48 and which read (again without footnotes) as follows:
43.Ms Xu makes the following formal concessions:
a.At no point in time was Ms Xu ever granted permission to work by the Respondent or the Respondent’s delegate.
b.Ms Xu worked unlawfully in Australia for almost the entire period that she was present in Australia.
c.The protection visa application that was lodged by Ms Xu’s then migration agent (Ms Billie Shi) on 1 July 1998 contained statements and claims that were untrue and which were later recanted by Ms Xu at the oral hearing before the RRT held on 30 March 1999. Although Ms Xu did not complete the form 866 the application was prepared on her behalf by her migration agent and Ms Xu accepts that she is legally and morally responsible for the content and untrue statements by her signing of the application forms.
d.The appeal to the Minister under section 417 of the Act dated 31 May 1999 essentially repeated the untrue statements contained in the initial protection visa application to the Respondent rather than the oral claims made to the RRT. Although Ms Xu did not prepare that appeal the letter was prepared on her behalf by her the migration agent (Ms Billie Shi) and Ms Xu accepts that is legally and morally responsible for the content and untrue statements [sic].
e.The form 80 included with the February 2006 spouse visa application did not include Ms Xu’s employment history in Australia and as such was misleading by omission. Although Ms Xu did not prepare that document, the form was prepared on her behalf by her migration agent, Ms Xu accepts that she is legally and morally responsible for the omissions.
44.It is conceded that the above concessions are viewed by General Direction 21 as being very serious.
45.Further, it is conceded that the Tribunal is entitled to conclude that at some point in time during her stay in Australia, Ms Xu failed the character test under section 501(1) of the Act.
46.Question 6 on the form 47SP that constituted Ms Xu’s spouse visa application was incorrectly answered in the negative. The question, “Have you or any person included in the application ever been refused an entry pe3rmit [sic] or visa to Australia” should have been answered “yes” with an explanation given relating to Ms Xu’s protection visa application history.
47.Question 7 on the form 47SP that constituted Ms Xu’s spouse visa application was incorrectly answered in the negative. The question, “Have you held, or do you currently hold a Bridging E visa” should have been answered “yes” as Ms Xu had in fact been granted a single Bridging E visa on 24 June 1999.
48.Question 81 on the form 47SP that constituted Ms Xu’s spouse visa application was incorrectly answered. The question, “have you left any country to avoid been removed or deported” should have been answered in the affirmative.
36. The Visa Applicant said that she first came to Australia because her older sister, who lives in Sydney, told her it was a “good place”. She said also that having returned to China for a brief period, she returned to Australia, and did so with the intention of remaining in Australia.
37. The Visa Applicant admitted that at that early stage she had been unlawfully in Australia for approximately a month before she applied for a protection visa. When asked why this was so, she said that “I was quite lost”.
38. The Visa Applicant was asked how she came to apply for a protection visa. She said that she had heard from a friend that an application for a protection visa had the result that the Applicant could stay in Australia because she would receive a bridging visa. She found a migration agent (Ms Shi) through the newspaper. Her application for a protection visa appears at Tp284 and following pages. The Visa Applicant said that the words in the form were written by Ms Shi but that she signed it. She agreed that she knew that she was applying for refugee status on grounds which were not true, that she was not a leader in a political uprising and, in general terms, the application was fabricated. The Visa Applicant said that she accepted responsibility for the protection visa application.
39. The Visa Applicant said that the protection visa application having been denied she applied for a review by the Refugee Review Tribunal (“RRT”). Her agent, Ms Shi, did not accompany her to the RRT. She said that she did not know why this was so. At the hearing before the RRT, the Visa Applicant told the truth which revealed in clear terms that she was not a refugee. The refusal of a protection visa was thus affirmed by the RRT; see Tp320-Tp328; the first three paragraphs of Tp327 read as follows:
I accept the applicant’s claims, as clarified at the hearing, as she impressed me as a credible witness. She gave evidence in a frank and convincing manner. However, I do not accept what she infers from these claims – that she will face serious harm from her husband should she return to China in the reasonably foreseeable future. Moreover, her fear does not appear to be Convention-related.
Insofar as the applicant and her husband did not share similar political views, the applicant’s evidence does not disclose a real chance of persecution. Such differing views have obviously been manifest since at least 1989 when the applicant’s husband disapproved of her involvement in the then widespread pro-democracy demonstrations. In spite of this however, the applicant and her husband continued to live together until the applicant moved out of their conjugal home in January 1998. In that period, there is no suggestion in the applicant’s evidence that she had ever been seriously harmed or threatened with serious harm by her husband in view of their opposing political opinions. Neither is there any suggestion that she had ever been seriously harmed or threatened with serious harm by her husband on account of other problems in their relationship.
On the applicant’s evidence, the threat of serious harm arose only after she had raised the subject of divorce. As she herself said, her husband threatened to kill her when she declared her intention to seek a divorce. Given this history, I am not satisfied that the husband’s threat to harm the applicant is due to anything other than the applicant’s intention to divorce him and the unpalatable prospect that presents of losing face.
40. Having failed in her application to the Department of Immigration and before the RRT, the Visa Applicant then appealed to the Respondent under section 417 of the Migration Act 1958 (“the Act”). Her application is set out at Tp329 and Tp330 reading as follows:
To: Minister For Immigration and Multicultural Affairs
1st Floor, Melbourne Building, West Row, Canberra Act 2601
Re:Reconsideration to my Protection Visa Application Under the Ground of Humanism
From: Ms. Xiufang, Xu
Nationality: Chinese
File No.: RRT Ref. No. : N98/25902
Service Address: P.O. Box K 468, Haymarket, NSW 1240Dear Minister,
I am a Chinese who arrived in Sydney in 1998 with a visitor visa. Not long after that I applied for protection to your government under the Immigration Law. However my application was shortly refused by both DIMA and RRT. As I know that the Minister of DIMA might exercise his power under the Act.
417.
(1) if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favorable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3) the power under subsection (1) may only be exercised by the Minister personally.
…
I hereby apply for your reconsideration to my application.I have lost everything in China - a happy family, a good job and close friends due to the political opinion I hold towards the current situation of China was different from that of the members of Communist Party. Not only have I been seriously persecuted physically due to my political opinion, I have also suffered mentally the invisible torture. All my experience was hardly covered even in a long novel.
However both the DIMA and RRT case officer failed to fully understand my situation and feel the same expression as I do when they assessed my application. The claims I put forward was either ignored or separated from one another, which would lead to a bias decision. In both decision letters most of the content was filled by government information or documents from Electrical Files of their departments. Only a small part of the assessment was actually about my specific situation. It was understandable that none of my case officers would have lived in China for a while, and would have some understanding to such a political country where politics controlled everything, even human being's lives. Especially the difficulties a woman like me who have lost her family because of her political problems would have face. The pressure from the public critics, the isolation from relatives and friends, and the spiritual torture deep in my mind could not be seen by the others, but I told my case officer with the hope that he/she might understand me better than those didn't know me so well. Unfortunately my words were not given enough attention. I did not want to say that my application was carelessly disregarded, but want it to be reassessed by being given enough attention.
As your decision would play such an important role in deciding whether I would be able to live peacefully for the rest of my life, I hope you may give it a serious consideration. Thank you for your time and looking forward to your favorable news.
Applicant: Xu Xiufang
Date May 31, 1999
41. It will be noted that the section 417 application, in effect, repeated the fabricated grounds set out in the original application and which had been repudiated before the RRT. The Visa Applicant said that the section 417 application was submitted by Ms Shi, who was the migration agent consulted by her in respect of the protection visa application but who did not accompany her when she appeared before the RRT. The Visa Applicant said that she was aware of the application and read it prior to its dispatch.
42. The Visa Applicant agreed that during the period when she had a protection visa application in process she had a bridging visa, but one which did not allow her to work then or, for that matter, ever to work in Australia. She knew that for her to work was illegal. She said that although she knew it was wrong, she “had to do something”.
43. The Visa Applicant knew that her final bridging visa expired in November 1999. She nevertheless stayed in Australia and worked illegally (and throughout for cash and thus without payment of tax), until she eventually, together with the Applicant, left for China in February 2006; (it should be noted that the Visa Applicant’s status was totally illegal, and that she had run out of all possible options in point of time before she ever met the Applicant).
44. Having met the Applicant, she told him of her illegal status, and he was, so she said, shocked. However, it was the Visa Applicant who broke off the relationship. She said that “there was a misunderstanding as to language and I thought he might be concerned about my being illegal”.
45. The Visa Applicant agreed that she stayed in Australia from 1998 to 2006, and during that period she did not see her daughter who had been left in China. (The daughter is now aged 20 and, as set out previously, included in the Visa Applicant’s application). The Visa Applicant left her daughter in the care of her mother and also her ex-husband, who was living in her mother’s house (and being apparently legally entitled under Chinese law to do so). The Visa Applicant said that she communicated with her daughter usually by telephone at weekly intervals, and that she made decisions about her daughter’s education communicated to her mother. From time to time she sent money described by her as “a little bit”.
46. At this time, and with the Visa Applicant back in China, her daughter is living with her, while her ex-husband lives in her mother’s house. (Her mother is now cared for in a hospital facility).
47. The Visa Applicant said that she paid for the air tickets when she first came to Australia and out of her own savings. To obtain a divorce, she paid her ex-husband 50,000 RMB and which she said “I borrowed from my friends, like my neighbour”.
48. The Visa Applicant finished high school in Shanghai in 1981. She worked thereafter in a factory and in a supermarket. Her savings from that employment were, so she said, sufficient to furnish the money she needed. Her daughter, now 20, finished high school some two years ago and is living with her at home, but not working and “learning some English”.
49. The Visa Applicant said that when the Applicant was diagnosed with diabetes, she helped him by telling him “to eat less and to eat vegetables”.
50. The Visa Applicant said that if her application failed, the Applicant would have to come to visit her in China and that he does not have the means for this purpose.
51. The Visa Applicant agreed that when she left Australia, she had the spouse visa application in her possession. She agreed that it included a two page Form 80, all of which had been prepared by a migration agent referred to by her as “Richard” and who is in fact Wei Yin, and whose name appears at Tp271.
52. It is relevant to note that the manner in which Mr Prince conducted the examination in chief of the Visa Applicant was, at times, somewhat unusual. On a number of occasions he asked her questions of a distinctly leading nature, and which required affirmative or negative answers. To illustrate this aspect, I include my own notes of a part only of his examination of the Visa Applicant as follows:
That application included claims for refugee status and it said that you were the leader in a political uprising? Yes, that was in the form.
Was it true? No.
It was a lie? Yes.
It was a complete fabrication? Yes.
You didn’t fill in the form? No.
Who is responsible? My agent.
But you signed it? Yes.
So it’s your responsibility? Yes.
Whose fault is it that lies were told? Mine.
Do you accept that lies were told? Yes.
Do you regret this? Yes.
The application was refused? Yes.
Who lodged the appeal? My agent.
Then you had an oral hearing? Yes.
And at the RRT you told them something very different? Yes.
And you said that your real fear was your then husband in China? Yes.
What you said about your husband was true? Yes.
So you were then telling the Tribunal the truth? Yes.
Did the migration agent go with you? No.
Why not? I don’t know.
What was her name? Shi.
After this there was another step? Yes.
You lodged an appeal to the Minister? Yes.
Were you aware of the appeal being sent to the Minister in two pages? Yes.
Who prepared that document? The agent.
Did you read it? I don’t think I read it.
Do you know what it says? No.
Will you take it from me that it repeats the same lies told to the Department? Yes.
It doesn’t reflect what you said to the Refugee Review Tribunal? Yes.
Did the RRT send a copy of its decision to you? Yes.
Did the agent get a copy? I can’t be sure but I think she did.
Can you explain why she repeated the same lies? No.
You say that the agent wrote to the Minister and this was done for your benefit? Yes.
Whose fault is it that lies were told to the Minister? My mistake and I am responsible.
While the Refugee case was happening you had a bridging visa C and you did not have permission to work? No.
Did you ever have permission to work? No.
But you worked the entire time? Yes.
You understood it was illegal? Yes.
You knew it was wrong? Yes.
There’s a difference between legally wrong and morally wrong? Yes.
Legally it was wrong to work without permission? I understand.
It was also morally wrong? Yes.
But you did it anyway? Yes.
Why? I wanted to stay and I had to do something.
Even though it was wrong? Yes.
Your last bridging visa ran out at the end of November 1999? Yes.
Then you were illegal until you left in February 2006? Yes.
It’s a long time? Yes.
Do you accept that this was wrong? Yes.
Who was responsible? Myself.
Whose fault was it? Mine.
53. The content of the preceding clause should not be construed in any way as critical of Mr Prince. It seems clear that he advised the Visa Applicant that her case would best be served by complete honesty, and this indeed is why ASFC includes the admissions referred to previously in these reasons.
54. During the submission stage, Mr Prince contended that the Visa Applicant had expressed remorse for her conduct. The only expression of remorse consisted of one brief affirmative to one question and answer and where Mr. Prince put it to her (in the manner set out in clause 52 that “You are remorseful about what you did?” and she answered “yes”.
Part D: The Visa Applicant’s Evidence; Cross-examation
55. The Visa Applicant said that when she first came to Australia in 1998 she stayed with an older sister who was living in Sydney. She stayed with her sister for about eight months; a part of that period occurred after her return to Australia and after her brief trip back to China to “settle her affairs”.
56. When asked when she decided to remain in Australia, she replied that it occurred at the beginning because she thought that Australia was beautiful.
57. The Visa Applicant said that she decided to apply for a protection visa not long after she came to Australia, but after her return from China.
58. When asked why she went back to China, she said that she had come in the first instance to “have a look” and that she had things to sort out in China. She had decided to get a divorce from her ex-husband before she ever came to Australia. She said that she had attempted to obtain a divorce at that time, but that the process was delayed when her tourist visa was issued and did not proceed when she stayed in Australia.
59. The Visa Applicant was asked when she again made efforts to obtain a divorce. She said that she started proceedings in 2004, and the divorce from her ex-husband was eventually granted in 2005.
60. It was put to the Visa Applicant that she had told the RRT that she was afraid of her ex-husband. She said that she was afraid that he would harm her. She agreed that she left her daughter with her mother and ex-husband because her ex-husband might harm her, the Visa Applicant, but said that although he might harm her he would not harm their daughter. Her ex-husband is some five or six years older than she is; she does not know what he now does for a living, but he was previously a worker in a factory.
61. The Visa Applicant agreed that she consulted her migration agent, Ms Shi, after her tourist visa had expired. She said that before she consulted her migration agent, she had been told that an application for a protection visa resulted in the grant of a bridging visa.
62. The Visa Applicant agreed that she knew about a protection visa application before she consulted Ms Shi. When asked if she instructed Ms Shi to apply for a protection visa, she replied that she did not tell Ms Shi what to do, but that rather Ms Shi had told her to do so.
63. When asked whether she realised that this meant that she would be claiming that she was a refugee, she said that Ms Shi told her to apply for refugee status. When asked whether she thought she was a refugee she said “No”. She agreed that when she went to the RRT she was claiming refugee status. When the RRT approved the refusal decision, she again consulted Ms Shi as to an application to the Respondent under section 417.
64. When asked whether she was concerned about the fact that her section 417 application would be founded on untruthful statements, she replied “Yes I was worried but she said that this is the only way”.
65. The Visa Applicant agreed that she knew that she was applying for a visa which would enable her to stay in Australia; she agreed also she knew that her bridging visa expired in 1999 and that thereafter she had no visa. She agreed she made a conscious decision nevertheless to remain in Australia. When it was put to her that she could have gone back to China, she agreed but said that she did not do so because of her relationship with the Applicant.
66. It was then put to the Visa Applicant that she met the Applicant only in 2000. She then said that she had been told that the coming of the Olympics in 2000, and also the fact that there would be a republic referendum in that year, might result in an amnesty.
67. It was then put to her that after 2000 and with no amnesty, she stayed in Australia for some six years thereafter.
68. She accepted that this was so. When asked whether she ever thought about obtaining a visa, she said that she thought that she should but did not apply because she could do so only in China. When asked why she did not go back to China for this purpose, she said that she needed a divorce and the divorce was delayed.
69. The Visa Applicant agreed that she eventually left Australia to go back to China in order to make the visa application, which she thought would result in the granting of a visa. When asked if she would have taken the same course of action if she had known that it would result in this hearing, she said that she would have done so because “it is the only way”.
70. When asked again why she waited for so long, she referred to “opportunities” and when asked what she meant she referred again to the Olympics and the referendum.
71. The Visa Applicant said that her spouse visa was prepared by a new agent who came from Hunan, as did her employer, and that she therefore trusted him.
72. When asked why she had not ensured that the spouse visa application was not defective, she said that this was because she trusted the agent. She said also that she was not aware of any defects, other than those related to her work history and her migration history, in the spouse visa application,
Part E: The Evidence Considered and the Character Test
73. It is quite clear that the Visa Applicant came to Australia as a tourist in order to stay in Australia permanently. This may be so in respect of her first arrival, but at all events was so at the time of her second arrival, which was not very long after her first arrival.
74. The Visa Applicant stayed in Australia for a period illegally before she applied for a protection visa. She knew that she was not a refugee and thus not entitled to claim refugee status, but did so because that was the only way in which she could stay in Australia.
75. Having told the RRT the true position, and so that her refugee application was necessarily denied at that level, she nevertheless reverted to the same untruths in her section 417 application.
76. Throughout her stay in Australia, the Visa Applicant worked illegally and for cash and thus did not pay tax. She was illegally present in Australia from 1999 until she eventually departed in 2006.
77. When the Visa Applicant departed from Australia she did not have a visa. This resulted in enquiries at the airport and at which she admitted that she had worked illegally in Australia. A day later and in Shanghai, the spouse visa application was submitted in a form which was detailed in most respects, but included no information whatever as to her work in Australia, and in addition denied in terms that she had ever been refused a visa. (She had of course been refused in respect of her application for a refugee visa). Ms Quinn accepted that the question in the relevant form, as to whether she had left Australia to avoid being forcibly removed, was couched in terms which did not have the effect that her answer to that question was necessarily untrue.
78. The Visa Applicant’s evidence as to an amnesty cannot be accepted. Following the massacre in Tiananmen Square, Chinese students in Australia received visas of a special kind (and there were other special visas), but none of these special categories were in any way relevant to her.
79. Mr Prince contended that the Visa Applicant should receive credit for her honesty in making the admissions, and also because she admitted to working illegally where the authorities might never have known about her illegal work. Those contentions cannot be accepted. Most of the content of the admissions could not be denied, and it is hardly likely that she would have stayed in Australia for so long a period without working at all. In the same context, Mr Prince contended that, after all, she had support in Australia in that she had an older sister living in Sydney, and that after the de facto relationship she had the support of the Applicant. That contention was, it might be thought, double-edged; if the Visa Applicant did not have to work illegally, the fact that she did so is all the more reprehensible.
80. As is so often the case with matters of this nature, money issues do not make rational sense. She worked before coming to Australia in a factory and in a supermarket, but somehow had the means to travel to Australia twice. Her evidence as to borrowing from her friends and including a neighbour to pay off her ex-husband are difficult to credit. It is unlikely that the Applicant on his low earnings would have had the means to assist her financially.
81. The Visa Applicant’s long absence from her daughter over many years was explained by Mr Prince on the basis that this is not unusual in China. I find that explanation difficult to accept.
82. It is true that the Visa Applicant made a considerable number of admissions, but I doubt whether she had any option but to do so. Some of her evidence cannot be accepted. She said at first that she did not leave Australia in 1999 because of her relationship with the Applicant. When confronted with the fact that she had not then met the Applicant, she then (as set out previously) fell back on her hope of an amnesty.
83. The evidence of the Applicant can largely be accepted, except that his claims as to his health are clearly exaggerated. As I have noted, he was diagnosed with diabetes in 2003; this may have occurred after he met the Visa Applicant and before the break or during the break. He was informed that his diabetes was of a kind which required medication and care as to diet and exercise. He did not and still does not require insulin. To claim that his health problems are attributable to his separation from the Visa Applicant cannot be valid.
84. In clause 101 of my decision in Re Carini and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 90, I referred to matters described as “usual situation” cases in the following terms (at [101]):
This then is yet another of the “usual situation” cases. By this is meant that a person enters Australia under a tourist visa and then seeks to remain in Australia through a whole series of false protection visa claims and including in this case something additional in the joining of the High Court class action. This case differs from the “usual situation” cases in one respect and that is that I accept that the Visa Applicant did not originally come to Australia in order to remain here permanently. Departure from Australia in “usual situation” cases generally takes place only after marriage, which occurs, so-to-speak, at the “end of the line”. Cases such as these are almost invariably decided against the Visa Applicant in the absence of special circumstances (for example an Australian citizen child or because of cogent medical reasons). There have been so many “usual situation” cases that it is unnecessary for me to cite them. And consistency in decision making is desirable; see Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
85. In respect of usual situation cases there are, of course, variations on the same theme. In usual situation cases, the visa applicant often, after all other avenues have been exhausted, marries and thereafter, and usually not all that long thereafter, leaves Australia in order to lodge a spouse visa application off-shore, and as he or she would be obliged to do. This too is a case where a Visa Applicant married after all of her options had been exhausted, but she did not thereafter immediately depart Australia in order to lodge a spouse visa application. On the contrary, many years were to elapse after she entered into a de facto relationship with the Applicant before she departed Australia. There is no suggestion that the relationship is not genuine. A visa could have been applied for when it was possible to establish the de facto relationship. With this exception, and it does not seem to me that it is a significant distinction, this case falls squarely within the category of usual situation cases.
86. Mr Prince contended, with some force, that this case is distinguishable on the basis that the Visa Applicant, when she appeared before the RRT, admitted that she was not a refugee. This is so, but any possible merit was, in my view, extinguished when in her section 417 application, she reverted to the fabrications originally relied upon.
87. Mr Prince contended also that the fact that the Visa Applicant worked illegally for many years was something which she herself confessed, and that the Respondent would not otherwise have known that she did so. After all, so he contended, and as set out previously, she might have received support from her older sister and later from the Applicant. Again as set out previously, that contention is double-edged in that to work illegally when it is not necessary to do so must, if anything, work against her.
88. Mr Prince contended that the Visa Applicant expressed remorse. It is difficult to accept that her single word affirmative answer to one leading question by Mr Prince and set out in clause 54 could be said to amount to remorse, and in fact all of her actions over so many years would indicate that she was remorseful about nothing other than eventually having to disclose and admit all of her illegal acts. She wanted to settle in Australia and was prepared to stop at nothing (in relation to the Act) in pursuit of that ambition.
89. It will be remembered the Visa Applicant said in cross-examination that she did not leave Australia in 1999, when her final visa expired, because of her relationship with the Applicant. When it was pointed out that a real relationship with the Applicant commenced only at earliest in late 2000, she then sought (again as set out previously) to rely on her alleged hope of an amnesty. That claim cannot in this context be accepted.
90. Mr Prince was asked whether failure of the character test was conceded. He said that it was conceded that the Visa Applicant failed the character test at the time of her departure from Australia in 2006. As to how or why it could be contended she failed the test at that time but not thereafter was not explained. Mr Prince finally said that failure of the character test was not conceded.
91. Over a period of many years the Visa Applicant consistently and repeatedly breached provisions of the Act. Put in general terms, she worked illegally throughout and she made applications which were false; this applies to her protection visa application, her appeal to the RRT, her application under section 417 and finally her spouse visa application. That she stayed in Australia illegally for so many years may not be an offence under the Act, but it does constitute behaviour which is at the very least reprehensible. Ms Quinn pointed out, and correctly, that the whole thrust of the Act is to allow persons to enter Australia on the strength of a valid visa on the basis that they must depart when the period to which the visa refers expires.
92. In the circumstances I find that the Visa Applicant does indeed fail the character test.
Part F: Direction under section 499 - visa refusal and cancellation under section 501 of the Migration Act 1958 (“Direction 21”)
93. In this Part F references to numbered clauses relate to numbered clauses in Direction 21. The primary considerations are contained in clause 2.3 reading as follows:
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.
94. Clause 2.3 must be read in conjunction with clause 2.5, reading as follows:
The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
95. There are no children who are relevant; the daughter is now 20, and the question of whether she could gain admission to Australia, assuming that the Visa Applicant is successful, would depend on whether she is a dependant.
96. As to the prospect of recidivism, the argument is of course that the Visa Applicant, having at long last gained legal admission to Australia, would not have any need to repeat that conduct. I refer in this context to Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714 and where Deputy President Wright QC noted at paragraph 33, that:
In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.
97. In the same context, I refer to:
(a) Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, where Deputy President McMahon noted at paragraph 36 that:
... The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications … Australia can have no confidence that he would not again trangress [sic] in matters where truth and good faith could be deceptively withheld.
(b) Clause 57 of the decision of Deputy President Chappell in Re Kaufman and Minister for Immigration and Multicultural Affairs (AAT 11712A, 23 November 1998), and where he quoted from the decision of Deputy President McMahon in Re Tran and Department of Immigration and Multicultural Affairs (AAT 12357, 30 October 1997); clause 57 of that decision reads as follows:
The legitimate interests of the Australian community in the maintenance of an ordered migration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour. (at 17)
98. I do not think that recidivism is a significant factor, although so prolonged a history of false dealings with the authorities, and in general so long a period of wilful flouting of the law in Australia, must cause me to believe that it cannot be discounted entirely; see also Re Chea and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1315.
99. As to deterrence, I refer in particular to Re Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935 at paragraph 47, Deputy President Purvis QC stated that:
… These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.
100. Generally in the context of all of concepts generally I refer to Re Sneddon and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1269 and Re D'Mellow and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 120. See also: Re Msumba v Department of Immigration and Multicultural Affairs [2000] AATA 87 at [39], Re Tremlett v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244 at [57], Re Gorges v Minister for Immigration and Multicultural Affairs [2002] AATA 89 at [477], and Re Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156 at [46].
101. In respect of deterrence then there is of course no concrete evidence as to the effect of publication on the internet of decisions of this Tribunal. It may be that Tribunal decisions are not readily available in China, in that the Tribunal website is not readily accessible, or, and this is more likely, it is accessible but is not generally known or consulted. It is likely though that Tribunal decisions become known in the community in Australia. To grant a visa in these circumstances would, in my view, send entirely the wrong message. In Re Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575 Deputy President McMahon said at paragraph 26:
As to the expectations of the Australian community, it is my view that no person of any nationality should be rewarded for attempting falsely to obtain immigration benefit to which that person was not entitled.
102. I refer next to clause 2.12 of Direction 21 as to the expectations of the Australian community. Experience has taught me that views in the community as to breaches of the Act do tend to vary, but it is my view that, at the very least the Australian community expects compliance by all persons and including persons illegally in Australia, with Australian law, and in the circumstances I would expect that Australian expectations would favour the refusal of a visa.
103. To refuse a visa will cause hardship to the Applicant, but it must be remembered that he knew of the real situation from the outset. His rejection of New Zealand as a possible alternative is a matter of personal choice. It was contended that his health was such that he needs the Visa Applicant’s presence. It must be remembered that, as set out previously, his diabetes was diagnosed in 2003, although exhibit A2 does not specify the precise month in 2003 in which the diagnosis was first made. This may have occurred before or after the de facto relationship commenced. In any event, it requires medication only, and not insulin, and attention to diet and exercise. That was the situation then and the same situation applies now. The Applicant cannot be heard to argue that he needs the Visa Applicant’s presence to ensure that he eats properly and diets.
104. Mr Prince referred me to a number of decisions of this Tribunal some of which were of distinctly dubious relevance. The application in Re Pham and Minister for Immigration and Citizenship [2007] AATA 1837 succeeded in large part because there was a daughter whose interests were primary. This is so also in respect of Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 where again there was a child whose interests were primary. Both of these cases are readily distinguishable. So for that matter is the case of Re Au and Minister for Immigration and Citizenship [2008] AATA 28, where the Applicant’s mental condition was such that she could not manage at all without the assistance of the Visa Applicant. The application in Re McCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805 succeeded apparently in circumstances where the period involved was a matter of months, rather than years, and where the Deputy President concerned found that there was genuine remorse and contrition. I cannot make the same finding.
105. As stated previously, this case does fall within the category of “usual situation” cases. To grant a visa in these circumstances would be altogether inconsistent with numerous other decisions in which a visa was refused. Consistency in decision making is desirable; see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
106. I think that it is desirable to note that the manner in which Mr Prince conducted this case on behalf of the Applicant deserves commendation. I do not think that the Applicant’s case could have been presented more efficiently or completely.
107. There were during the hearing references to the conduct of Ms Shi, a migration agent, who is apparently still in practice as such. It was she who was involved in the original protection visa application. She did not accompany the Visa Applicant to the hearing before the RRT but must have been aware of its findings. It was Ms Shi who presented the section 417 application which was, for the reasons set out previously, entirely inconsistent with the admissions made to the RRT, and was manifestly untruthful. The Respondent might think it desirable to investigate that conduct.
108. In the circumstances, this is not a matter in which the discretion can be exercised in favour of the Visa Applicant and accordingly the decision under review must be affirmed.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President.
Signed: ...........................[sgd].....................................................
Tal Aviram, AssociateDates of Hearing 18-19 June 2008
Date of Decision 7 July 2008
Solicitor for the Applicant Mr D Prince, KAH Lawyers
Solicitor for the Respondent Ms T Quinn, DLA Phillips Fox
ANNEXURE “A”
WITNESS STATEMENT – LINDSAY HANNINGTON
1.My name is Lindsay Alan Hannington and I am the Applicant in this appeal.
2.I was born in Australia on 20 October 1949 and I am now 58 years old.
3.I work as a taxi driver with Springwood Taxis. I work as an independent contractor in that I have my own ABN, I pay my own tax and GST and share the takings from my shift.
Initial Meeting and Relationship with XiuFang
4.The contact between my wife, XiuFang, and myself came about late in the year of 1999 while I was employed by a Publishing Company, Express Publications as a Graphic Designer. I had worked in the business for some time and was comfortable in my work.
5.Lucy, XiuFang’s sister, was also employed by the same company. Lucy was in the warehouse building dealing with returns of magazines, which was a block or so away from the office where I worked. Lucy and a few others also did some cleaning of the editorial offices early in the morning. Because I chose to start early I would the see Lucy and the other cleaners most morning.
6.We used to chat and a friendship developed. Lucy would teach me some Mandarin words and expressions. Lucy would ask me various things about my dog (as I had a picture of my dog on my computer screen saver). I befriended many of the Asian cleaners as they were often treated so poorly by the management.
7.Over some months Lucy and I developed a friendship, seeing and conversing, in very broken-English, with each other as we went about our duties each morning.
8.With the Christmas Festive Season approaching and me being a bachelor, I half-heartedly asked Lucy if she knew of any ladies I could meet to make my Christmas more enjoyable.
9.After a day or two I reminded Lucy of my question/plea, to which she replied she had a sister who would like to meet me. I’d obviously made a good impression upon Lucy with the way I’d conducted myself and felt quite chuffed knowing she thought highly enough of me to introduce me to her sister.
10.Lucy gave me XiuFang’s phone number. It took me ages to pluck up the courage to give her a call, but I finally did. We agreed to meet up in park where we just sat talking for about 2 hours in early January 2000 (just after New Years Eve). Things went so well that I felt the courage to ask her to also come out for
ANNEXURE “A”
dinner. So we walked back to my car and we drove to a restaurant in Ashfield that XiuFang knew, called “Canton”.
11.I drove XiuFang come to Lakemba and I asked if I could see her again. I assume I’d made a good impression, or was it the Lobster we shared for dinner? I was met with an acceptance when I asked if I may see her again. For the following three months we kept company with each other as often as we could.
12.Dinners, movies, motorcycle rides in the country and visits to my home in the Blue Mountains followed and brought a closer bond in the relationship.
13.During one of her visits to my home in about March 2000 XiuFang demonstrated her honesty making me aware that she was in Australia illegally. She opened up her passport and showed me the dates on the visa stamps. XiuFang also told me of her earlier application for a Protection Visa and her subsequent hearing at the Tribunal and how she was misled by an agent acting for her. Considering the stories I’ve heard of corruption in her native country I can see how she was easily misled into stating untruths in her answers to some questions.
14.She said that she was telling me these things because she wanted to be honest with me.
15.I must admit that I had an uneasy feeling after learning this part of XiuFang’s history. I wondered if I could get into trouble for harbouring an illegal alien, or would she get into trouble and be deported. I asked myself, was I barking up the wrong tree and I was going to get burned?
16.But XiuFang seemed to be sincere and already I was convinced that she was just a wonderful person. So I just threw caution to the wind. By that stage I had fallen for her and I was not willing to give her up; just like I still am not willing to give her up.
17.I understand that the migration agent who prepared the protection visa application, Ms Billie Shi, just made up all the claims and that it was only when XiuFang was speaking with the Tribunal face-to-face that she was able to tell the truth about why she did not want to return to China. XiuFang told me that at the Tribunal hearing she was listening to all the claims that she been made by Billie Shi and eventually she said “enough, that’s just not true” and then told the truth to the Tribunal.
18.A language-barrier breakdown during discussions about her legal position in Australia brought about the demise of the relationship, instigated by XiuFang. I was alone again.
19.We had been thinking and talking about moving in together. But as we were talking I tried to explain about the possible problems that could cause for me.
ANNEXURE “A”
That is, that I might be accused of harbouring an illegal alien. Because she did not understand what that meant I gave the example of hiding a robber/thief.
20.XiuFang was then almost in tears and I now understand that she interpreted (incorrectly) my comments as accusing her of being dishonest and a thief.
21.That was the end of our relationship at that point.
22.I drove her home and she basically let me know that the relationship should end there.
23.I was initially very confused because I just could not understand what had happened and for the following six months I continually tried to find answers as to why the relationship had failed.
24.However, she later sent me two letters saying what she had understood I had said and how she had already had one failed marriage and that she was not prepared to have another. I think that someone later must have helped her write me these letters because the English was too good.
25.I tried to smooth it over, but it didn’t work. We would occasionally converse on the phone and it is clear that there was still some residual feeling for each other, but it was just cold and I guess that I gave up in a funny kind of way. However, in the back of my head there was that small feeling that maybe something would work out.
Rekindling of our relationship
26.October 2000 came along and with it the Annual Octoberfest Carnival held at Fairfield Showgrounds. This was an event attended by some of my ex work-colleagues and myself over a number of years - a chance to catch up with friends from the past.
27.While strolling around the Octoberfest venue I happened by a stall, where in the background I recognised a familiar face - that of my lost love, XiuFang. When XiuFang saw me her face lit up in beaming smile and she came over to me. I introduced her to my friends and we chatted to some time and I think that I must have asked her if I could give her a call and she said yes.
28.The re-acquaintance with this lovely lady was as near to perfect as I could imagine. We talked and sorted out things gone wrong earlier that year and decided to give the relationship another try. As we talked through the issues quietly together I was able to explain the misunderstanding that we had had, and that I had not meant what she had understood.
29.Three years of keeping company as much as my work allowed went by in a flash and I found myself asking XiuFang to move to the Mountains to be with me constantly. Not actually a proposal but the intentions were clear.
ANNEXURE “A”
30.By mid-2003 I knew without doubt that XiuFang was the woman for me. She had come to many of our family gatherings and my family had welcomed her into our family. At that stage the only members of my family who were aware of XiuFang’s visa status were:
(a)My mother, Dorothy Nelson;
(b)My uncle, Frank Hunter; and
(c)My sister, Gayle Wilkinson.
31.I know that these family members were worrided for me, but they supported me because they could see how happy I was in my relationship with XiuFang.
32.On 22 August 2003, we spent the day driving between Auburn, where she was living at that stage, and my home in the Blue Mountains loading and unloading her belongings as we proceeded to move XiuFang into her new abode, where she remained until we departed Australia in February 2006. It only took two trips as she just did not own very much in the way of possessions at all, despite living here since 1998. I remember that my broke at that time that she only had a few pots and plans, an older scrappy suitcase and a few other odds and ends. I am not a materialistic person, but the possessions that she had were just so very cheap and nothing of quality. It was clear that she had just been getting by with as little as possible.
33.Over the ensuing two years the relationship blossomed and the decision was made to enter into wedded bliss - a huge move for a then fifty-six year-old bachelor like myself.
34.During this time XiuFang had sought to obtain a divorce, from her Chinese Husband, through some unscrupulous person who convinced her that it was possible - for a fee!
35.Learning of this I told her, there was no body, government or otherwise that could legally grant her a divorce that would be legal in both Australia and China. She had already received the documentation and further enquires prove this to be true. She’d been taken for a ride again.
36.XiuFang then enlisted the help of her sister in Shanghai to instigate divorce proceedings in China. This took quite some time with much communication between concerned parties until finally an agreement was reached. The divorce being granted in 2005 and papers arriving in Australia shortly before our wedding.
37.Our Wedding was a quiet affair where twelve guests gathered with us to witness the ceremony performed by a celebrant in a Sydney Restaurant Function Room on October 2nd 2005.
ANNEXURE “A”
Medical Issues
Diabetes
38.In the early stages of my relationship with XiuFang I was diagnosed with late onset type II diabetes, an illness that has been kept under control through medication and diet. My GP, of twenty-four years, Dr Gary Roberts kept a constant watch on how I was responding to treatment.
39.At that time I had a kidney stone and Dr Roberts was doing regular blood tests on me. For no real reason Dr Roberts added a request for a glucose screening for one of the blood samples and the results showed that I had a very serious diabetes problem.
40.From the time XiuFang moved to live at my home I was introduced to an Eastern diet, something that has in some way been beneficial to my on-going illness. During regular blood-tests it was noted that an excellent result was being achieved. Dr. Roberts was delighted with the progress being made and agreed that the Eastern diet was more than likely a great advantage and jokingly expressed “What ever you do, don’t get rid of the cook!”
41.So before XuiFang returned to China in 2006 my diabetes condition was being well managed through 3 types of medication and XuiFang’s careful control of my diet.
Blood Pressure Issues
42.I also suffer from high blood pressure and I have been taking medication for many years.
Heart Disease
43.I suffered a small stress related heart-attack in the early 1990’s.
44.At that time I overheated and became very ill. At that time I was helping out at a restaurant and my workmates became so worrided about me that they called an ambulance which then took me to Windsor base hospital. I was hospitalised for 5 days and was about to be released for home when I said some more chest pains which let to me being taken by ambulance to Baulkham Hills hospital for an angiogram.
45.The tests showed a blockage in one of my arteries that required surgery. I was at home for 5-7 days before an angioplasty being performed at the San Hospital at Wahroonga and my further hospitalisation for another 5 days or so.
46.I had been living in the lower Blue Mountains since about July 1984. However, I continued to consult with Dr Gary Roberts in Kingswood as his rooms were very close to where my mother lived, and who I visited regularly.
ANNEXURE “A”
47.I used to smoke for many years but stopped following my heart attack. I started to smoke again a few years ago but I have since quit the habit for the second time.
The Loss of My Wife and the Effect Upon My Health
48.XiuFang is first and foremost my Wife, her devotion is second to none and I consider her the most caring woman I¹ve had the good fortune to meet. She has cared for me and sought out many herbs and foods that helped in retaining good health. I don’t proclaim her to be a modern day Florence Nightingale but she was instrumental in ensuring I received the needed care.
49.Without her being here I am suffering and I do fear for my health.
50.I’ve now been informed in the past twenty-four months, which coincides with the departure of XiuFang, my blood-test results have taken a serious down turn, so much so that I more than likely will become insulin dependant, a future I am not looking forward to.
51.The associated stress of being without my Wife and the financial burden of tripping off to China every so often, to be with her, is also something I can well do without.
52.Attached at ANNEXURE A is a letter from my GP, Dr Gary Roberts about my medical history.
Work in Australia
53.Before living with me I know that XiuFang survived by doing sewing, for which she was paid a meagre amount. XuiFang has told me that before living with me she would do 12 hours sewing for the paltry sum of $30 to $50. At that rate of pay she would have been well under the tax-free threshold such that there would have not have been any unpaid tax if she had been working with a Tax File Number.
54.At that time XiuFang had started working in Beauty Salons in Darling Harbour and Waterloo and to my disgust, had not been paid for two months while training. By then she was pretty much working full-time for about $200 a week initially but by the time we were leaving Australia it was about $500 or so a week.
55.I knew that XiuFang was working illegally and that that was wrong. I knew that she was working cash in hand and not paying tax, and that that was also wrong. I was not happy with that situation, but XiuFang had always been a hard worker and she could not bring herself to just sit around the house doing nothing all day. So I had to just accept that reality.
56.However she had found a vocation she wished to pursue and has done so in China, achieving a internationally recognised certificate, to aid her employment chances when she returns to Australia.
ANNEXURE “A”
Family Support in Australia
57.XiuFang has become part of a loving family unit that comprises of a Mother and father in-law who are pillars of their local Church, a Sister in-law who is an active Justice of the Peace, an Uncle who is a retired Teacher/School Principal, a Step Brother who is an ordained Minister in The Church Of England and another who is a well-respected businessman along with my good self and a host of others. All of whom, are what we like to think, good upstanding law abiding citizens and all anxiously awaiting her return.
58.XiuFang has been guided by the family to do what is right since joining our family.
59.My family who were aware of the XiuFang’s situation, as well as XiuFang and me, knew she would have to eventually return to China to set the record straight. And these family encouraged her do so. XiuFang will return to a most caring family environment in Australia that will guide and support her in all ways.
Return to China and the Spouse Visa Application
60.It was always our intention, once married, to travel to China and set the record straight, applying for a Spouse and Dependant Visas, to allow both XiuFang and her daughter WanQing to reside with me in Australia.
61.XiuFang enlisted the services of a Migration Agent, Mr. Wei YIN, to handle the application. Armed with the application we departed Sydney on 25 February 2006. There was some confrontation with Immigration Officials at Sydney International Airport where XiuFang was told of her unlawful actions before we were allowed to depart. We had the spouse visa application with us and we told the immigration officers that we were leaving Australia in order to travel to Shanghai and lodge the spouse visa application for XiuFang.
62.27 February 2006 was the first working day in Shanghai following our arrival and we proceeded to lodge the application for the Visas. Within a few days of lodgement we received a phone call notifying XiuFang that there was an outstanding debt of $1000 owing in regard to her earlier application for a Protection Visa.
63.It seems the agent acting for her neglected to inform her of this debt. That debt was paid within three days and work continued processing her application.
64.During my stay in China XiuFang, her daughter and I traveled to Beijing, Xi’an and Suzhou, giving me a chance to bond with WanQing and discover what a wonderful young lady she is. I returned to Australia 25th March 2006.
65.There were numerous communications between myself, my wife and the Immigration Dept. in Shanghai. All this time XiuFang and I were in constant contact with each other - it was then and is still a regular practice to conduct 1-2
ANNEXURE “A”
hour phone calls each weekend, varying only for special occasions or if we have urgent matters to discuss.
66.I discovered that the spouse visa application had been sent to the Brisbane Character Assessment Unit on 9 August 2006. Every phone call to said office was met with a refusal to be granted any information, instead being referred to the Migration Agent.
67.Following dates and notes fill in time up to the present:
(a)15/11/2006. Notice of intention to consider refusal (with some glaring mistakes) sent from Ronda Garner (Brisbane Character Assessment Unit) to Ms Xu’s agent who in turn notified XiuFang.
(b)28/04/2007: I traveled to China to be reunited with my wife for three weeks.
(c)After numerous phone calls I discovered the file sat idle for approximately four weeks while the person handling the case went on leave. The file being too complex to have another person handle the work was the excuse.
(d)20/06/2007: Notice of decision to refuse to grant a visa was sent to XiuFang’s agent. He in turn sent an email copy to XiuFang. That email not being discovered for another eleven days. You might say the agent dropped the ball in a big way. I was notified by my wife immediately.
(e)18/07/2007:I lodged an application with the Migration Review Tribunal for review of decision. Granted Case No:071581055.
(f)Some six weeks later I discovered that without the documents in hand, I’d mistakenly applied to the incorrect department. I then lodged applications for an extension of time and appeal with the AAT. XiuFang notified me, by phone, briefly outlining the contents of the email. I must admit I was flying blind without the document in front of me.
(g)The acting Migration Agent, Mr Wei Yin, sent an email of the decision to XiuFang in China, on an unknown date without the courtesy of a phone call to inform her that an extremely important document awaited her attention. Needless to say, Mr Wei Yin is no longer involved.
(h)XiuFang does not have the privilege of constant access to that computer and therefore the email sat undiscovered for approximately twelve to fourteen days.
(i)I sought advise from the Local Government Member’s office and was given what was considered to be the appropriate forms and address of where to lodge for a review of the decision. That information turned out to be incorrect. The application was lodged on 18 July 2007 with the MRT at a cost of $1400.
ANNEXURE “A”
(j)Six weeks elapsed before I was informed by the MRT that I had, in fact, lodged with the incorrect Department. During that time I was able to get a copy of the decision and realised I also had made a mistake. I put that down to acting in haste. I then sought further advice from the Immigration Advice and Rights Centre, who in turn directed me to Legal Aid, The Law Society and the Administrative Appeals Tribunal.
(k)I was then able to lodge a proper appeal with the AAT.
Past Relationship History
68.I have never previously been married.
69.Apart from XuiFang I have only had one serious relationship, which was a de facto relationship in the early 1980’s.
70.My partner’s name was Theodora Nicoliadis. We dated for 12 months and then started living together in 1984. We were together until 1991 when our relationship broke down.
71.I was 41 years old when we separated. I was shattered at that point because I did not want the relationship to end. She had become with a group of friends that I could not spend time with as I was at work. I was working 8:00 am to 4:00 pm in Alexandria which naturally also involved lengthy travel to and from my home in the lower Blue Mountains, while Theodora was working with her sister in North Richmond which was only 30 minutes from our home starting at 12:00 pm until getting home at about 10:00 pm. Eventually she just told me that, “I’m leaving”. We were like two ships that passed in the night and we were going two separate ways.
72.Despite be being shattered emotionally, it was an amicable separation and we even used the same solicitor to sort everything out.
73.I was then alone between 1991 and meeting XiuFang in early 2000 and I had started to wonder whether I was going to always be alone. I did not want to be alone, and certainly my mother did not want me to be alone.
74.I am now 58 years old and XiuFang is everything to me. I have now been living physically apart from her since early 2006 and no matter how often we talk on the phone, or when I travel to see her in China, it is not enough. I need her with me, that is the only acceptable solution for my life.
75.I can not imagine my life without her, and I know that I just have to win this appeal. There is just no other possible outcome for me.
Can I Move to China?
76.I have considered a move to China to live with XiuFang but my employment prospects are virtually nonexistent, considering their early retirement age, plus the fact I possess no writing or language skills for that country.
ANNEXURE “A”
77.As much as I love China and the family and friends I’ve made over the past two years I think that within six months I would literally be climbing the walls.
78.In the meantime three people remain desperately unhappily parted and can only hope and pray that some compassion is shown and we are all re-united in Australia.
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