Hao and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1172
•25 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1172
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/999
GENERAL ADMINISTRATIVE DIVISION ) Re Ping Hao Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date25 November 2005
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – visaex – on-shore visa cancellation of special category visa – past and present general conduct – applicant fraudulently obtained three passports, used a false identity, made false and misleading statements in connection with the obtaining of and use of Australian immigration documents – discretion that the tribunal may exercise where the applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant if her visa were cancelled – the applicant conducted its case on the basis that the issue was character itself – found that the actions of the applicant were part of an attempt to remain in Australia culminating in obtaining evidence of citizenship by criminal means – the applicant fails the character test – community protection and expectations outweigh other considerations – the decision under review is affirmed.
Migration Act 1958 ss 499, 501(6)(c)(ii), 500(6A) - 500(6L), 501G(1)(f)(v)
Explanatory Memorandum to the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Minister for Immigration and Ethic Affairs v Baker (1997) 73 FCR 187
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Re Lamb and Minister for Immigration and Multicultural and Indigenous Affairs A2004/400
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
REASONS FOR DECISION
25 November 2005 Professor GD Walker, Deputy President Summary
1. The applicant, Ping Hao, aged 42, has been a citizen of New Zealand since 2004. She first arrived in Australia in December 1997 from China on a business short stay visa. She remained in Australia on a series of bridging visas until she returned to China to live in November 2000.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that while in Australia Ms Hao fraudulently obtained three Australian passports, including one in the name of Pamela Hao that she used herself, she made false and misleading statements in connection with a number of visa applications and she has not been truthful in any of her immigration dealings. The applicant was charged and convicted in connection with immigration fraud. The respondent therefore cancelled Ms Hao’s subclass 444 special category visa. That is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal to determine in this case is whether Ms Hao is not of good character having regard to her past and present criminal conduct and past and present general conduct so as to cancel her subclass 444 special category visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) of the Migration Act 1958 not to cancel her visa.
Background
4. The applicant, Ms Hao, was born in Beijing, China, on 19 June 1963, is aged 42. She is a citizen of New Zealand and is currently residing in New Zealand. She has one child, a daughter, Ju Jin Zhao (known as Mandy Zhao), born on 29 June 1989, now aged 16, who resides in New Zealand.
5. On 12 September 1997, Ms Hao was granted a business (short stay) visa valid for three months. She arrived in Australia from China on 22 November 1997, accompanied by her sister, Li Hao (now known as Lee Ann Cawthorne). Shortly after her arrival, she applied for a long stay business visa and on 3 December 1997, she was granted a bridging visa (subclass 020) for a period of three months pending the outcome of her visa application. She departed Australia on 4 December 1997. She returned to Australia on 2 March 1998 (using her bridging visa). Ms Hao applied for and was granted a further bridging visa (subclass 020) on 16 March 1998 to cease 14 July 1998. She subsequently departed Australia on 19 March 1998, returned on 7 May 1998, and departed again on 18 May 1998. Ms Hao returned to Australia on 1 June 1998.
6. On 14 July 1998, Ms Hao was granted a further bridging visa valid until 28 June 1999. She subsequently departed Australia on 1 August 1998, she returned on 9 September 1998, departing on 23 September 1998, arriving again on 22 October 1998. On 28 June 1999, she was granted a further bridging visa to cease on 4 May 2000. Ms Hao departed Australia on 9 July 1999, returning again on 26 September 1999. On 4 May 2000, she was granted a further bridging visa to cease on 16 October 2000. She subsequently left Australia on 9 May 2000, returned on 18 May 2000 and departed again on 27 June 2000. She returned to Australia on 16 July 2000. On 16 October 2000, Ms Hao was granted a further bridging visa to cease on 16 January 2001. Ms Hao left Australia on 1 November 2000.
7. In May 2001, Ms Hao travelled to New Zealand from China to live. She became a citizen of New Zealand in 2004.
8. On 9 March 2005, Ms Hao arrived in Australia from New Zealand and was granted a subclass 444 special category visa upon her arrival at Sydney international airport. The Australian Federal Police subsequently informed immigration officials that they wished to interview Ms Hao about her involvement in obtaining a false passport in the name of Pamela Hao through making false or misleading statements and using false documents. Ms Hao was then interviewed by immigration officials, with the assistance of an interpreter. At that interview, she admitted that she obtained her passport, issued in the name of Pamela Hao, through a friend for the sum of US$50,000. She had used this passport, which contained a false name, date of birth and place of birth, to travel to Taiwan and back to Australia. She also admitted that she bought two other passports, one for her daughter, Ju Jin Zhao, and one for her niece, Yan Yan Hao, for which she paid US$100,000. She said that her daughter is a citizen of New Zealand, living and studying in Auckland. She is not aware of the whereabouts of her niece.
9. The applicant said that she first arrived in Australia in December 1997 on a subclass 456 business visa on her Chinese passport. Her intention in coming was to have a holiday, not to conduct business.
10. With regard to her New Zealand citizenship, she told the immigration officials at her interview that she first went to New Zealand in 2001 on an investment visa, granted using her Chinese passport. She said that she deposited the sum of NZ$1 million into a bank account in New Zealand, although she did not use the money for any investments. Shortly after that, she changed her visa status and lodged her application for citizenship. She also told the delegate that cancelling her visa would affect her sister and brother-in-law and also affect her reputation.
11. Ms Hao was then informed that a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs intended to examine whether there were grounds to cancel her subclass 444 special category visa. On the same day, being 9 March 2005, a delegate of the respondent informed Ms Hao that after considering her comments and answers from her interview, a decision had been made to cancel her visa as at 9 March 2005 on the ground that she failed the character test pursuant to s 501(6)(c) of the Migration Act 1958 (“the Act”) because of her past and present general conduct. Ms Hao was immediately detained and subsequently charged by the Australian Federal Police (“AFP”) with two counts of making false statements to obtain a passport and two counts of making false statements in support of a passport for another person. On 16 March 2005, she pleaded guilty to those charges at Central Local Court and was sentenced to six months’ imprisonment, to expire on 8 September 2005. An appeal was subsequently dismissed by the Sydney District Court on 18 April 2005.
12. On 5 August 2005, the applicant lodged an application with the tribunal for a review of that decision. Following discussions between the legal representatives for the applicant and the respondent, it was agreed that service was ineffective under s 500 of the Migration Act as the applicant was not provided with notice of her rights of appeal or two sets of the documents upon which the decision to cancel her visa was made. Ms Hao was subsequently re-served with a notice of cancellation under s 501(2) of the Act on 6 September 2005. Following further discussions between the representatives for the applicant and the respondent, it was agreed that the cancellation fell within the expedited visa regime and the application was listed for hearing according to the tribunal’s practice and procedure for expedited matters. The applicant later disputed that the expedited visa procedure applied.
13. On 8 September 2005, Ms Hao was released from the Emu Plains Correctional Centre and, on the same day, returned to New Zealand pursuant to a monitored departure.
14. At the hearing of this matter, the applicant was represented by Cameron Jackson, counsel, instructed by Brenton Halligan, Legal Migration Services, and the respondent was represented by Kate McNamara, solicitor, Phillips Fox lawyers. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 (“the G Documents”) taken into evidence as Exhibit A1, together with the documents tendered by the parties at the hearing. Oral evidence by telephone was given for the applicant by Ms Hao, Cliff Wong, Elizabeth Hao, Jianting Wang, Stephen Rainey and Sanqiang Zhang, and evidence in person was given by Lee Cawthorne and Donald Cawthorne. The respondent called no witnesses.
Relevant Legislation
15. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he does in fact pass the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is s 501(6)(c)(ii). Section 501(6)(c)(ii) states:
(c) having regard to either or both of the following:
(i) …
(ii) the person’s past and present general conduct;
the person is not of good character; …
16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
17. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Do the expedited visa provisions apply?
18. A preliminary issue was whether this application is governed by the tribunal’s normal procedures, or whether it is an expedited visa case to which the special procedures laid down in s 500(6A) to (6L) of the Migration Act 1958 apply. If the special procedures apply, they would have the effect of making inadmissible a psychiatric report about the applicant dated 13 November 2005 and certain additional oral evidence relating to the applicant’s niece, because written copies were not served on the Minister two clear days before the hearing date as required by s 500(6H) and (6J) respectively.
19. Mr Jackson on behalf of the applicant submitted that the special provisions in terms apply only when “the decision relates to a person in the migration zone”, and the use of the present tense means that if the person ceases to be in the migration zone, as is the case here, those procedures no longer apply and the evidence could be admitted and relied upon pursuant to the tribunal’s normal procedures. The whole of the special provisions established a “railroading process” with its eyes fixed on the 84-day time limit laid down in s 500(6L). But once the applicant was no longer in the migration zone, the purpose for those provisions was no longer present.
20. In Re Lamb and Minister for Immigration and Multicultural and Indigenous Affairs (A2004/400), the applicant argued that the time for determining whether the expedited visa provisions apply is the time of the decision. In that case the applicant had not been in the migration zone at the time of the decision and wished to make use of the extension of time provisions of the AAT Act that are excluded in expedited visa cases by s 500(6B). The case was settled but detailed arguments had been presented. It was argued in that case that s 501G(1)(f)(v) provides that in the case (only) of a decision that relates to a person in the migration zone, the Minister must give the person written notice setting out the effect of ss 500(6A) to (6L). The introductory words of paragraph (f) place subparagraph (v) in the context of establishing that the person has a right of appeal to the Administrative Appeals Tribunal, and any appeal rights must be those that exist at the time of the decision. There was also no reason for the phrase “the decision relates to a person in the migration zone” to have a different meaning elsewhere in the legislation.
21. It may also be pointed out that elsewhere in the legislation it is recognised that a person who was physically present in the migration zone at the time when the decision was made may not be physically present in the migration zone at a later relevant time during the review process; s 347(3A). The expedited visa provisions, however, do not attach any significance to the applicant’s presence in the migration zone at any time other than the time of the decision.
22. Support for the above view can be found in the Explanatory Memorandum to the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 that inserted the new ss 500(6A) to (6L). The memorandum makes it clear that the amendments apply only where the decision relates to a person in the migration zone and that the Administrative Appeals Tribunal Act1975 would otherwise apply to the “process of review by the AAT”. Paragraph 38 of the memorandum states that “These amendments are also intended to ensure that the review process is not used as a mechanism to prolong stay in Australia by people whose visa has been refused or cancelled” for character reasons. Paragraph 39 also refers to “the amendment to the process of review of character decisions”. The intention thus seems to be to establish a special process of review, but a comprehensive one, for persons falling within the scope of the new provisions.
23. Mr Jackson argued that those considerations were of no assistance in the present case because the question remained whether the provisions are set in motion once and for all, or whether the applicant’s departure changes the position. In his submission, s 501G(1)(f) was needed only because a person who stays in the migration zone must be given notice of the special effect of the expedited process. The explanatory memorandum emphasised the point because it makes it clear that the purpose of the new provisions was to prevent prolongation of the applicant’s stay. The decisive consideration was the wording of s 500(6H) and its use of the present tense, which had been used at all times in the relevant provisions. They ceased to apply automatically once the applicant departed. It was not necessary for the tribunal to do anything.
24. Mr Jackson’s argument is a respectable one and is consistent with the underlying policy of the special provisions. Nevertheless, if one works from the statutory language itself, as the tribunal must, I think it is hard to escape the conclusion that when the applicant is within the migration zone at the time of the decision, the statutory scheme created by the legislature, including s 501G(1)(f)(v), triggers the expedited visa regime, which runs its course whether the applicant remains within the migration zone or not. The tribunal is not given any power to terminate its operation if circumstances change. Further, the construction urged by the applicant would have the effect that an applicant who had access to financial resources and to a convenient nearby country, as in this case, could acquire more favourable procedural conditions in mid-stream, as it were, by electing to make a monitored departure rather than remaining in detention within the migration zone.
25. The point is not without difficulty and the courts have not yet been required to give any guidance on the proper construction of the expedited provisions in this respect. There are persuasive arguments on both sides, but I think the applicant’s argument gives too much work to the use of the present tense in the special provisions and not enough to the specific reference to the decision as being the operative circumstance. Accordingly I ruled that the special expedited visa procedure applied.
26. Besides requiring the tribunal to deliver its decision by the expiration of 84 days, the effect of that ruling was to make inadmissible the psychiatric evidence about the applicant and the further oral evidence in relation to the applicant’s niece. In this case, however, the applicant conducted the case on the basis of the character test itself and, given the applicant’s favourable living conditions in New Zealand and the fact that her daughter is with her there, very properly conceded that the case was not one for the exercise of the discretion.
The offences and the circumstances surrounding them
27. Ms Hao gave evidence by telephone from New Zealand with the assistance of a Mandarin interpreter. She said that her family had been wealthy in China but had suffered greatly when the communists seized power in 1949. Her grandfather had been murdered and the family’s wealth was confiscated. The applicant’s father managed to build up the family wealth and influence once again, but because of the family’s earlier position, it remained subject to suspicion. Her father had formed a plan to take the family out of China to a new country where their wealth would be safe. A stroke left him incapacitated, however, and in 1993 he committed suicide: “I made a promise to my father’s body”, the applicant said, “that I would carry out my father’s wishes and find a way to bring the family to Australia” (Exhibit A1). After her father’s death, she became involved in property development with a business partner, her role being promotion and marketing. The enterprise flourished and she became a wealthy woman.
28. Having arrived in Australia in December 1997 on a short-stay business visa valid for three months, she searched for a migration agent to help extend her visa. She found her first agent, Song Bing He, through the local Chinese newspaper. His offices were in Chinatown. She paid him US$10,000 to apply for a bridging visa, but when after a year she had not received the visa, she approached another agent, also in Chinatown. The second agent applied for a visa that would permit her to remain and work in Australia. She paid him US$10,000 as well, but once again received no visa. A third agent she approached said that if she invested $380,000 in a hydroponic farm in South Australia, she would qualify for permanent residence. On 30 October 1998, she entered into an agreement (Attachment A to Exhibit A1) with a company in connection with that investment.
29. Having received no dividends by April 2000, she concluded that all the money was lost and could see no further way of obtaining permanent residence. Her daughter could not attend school effectively because the short-stay visas that she held required her to leave the country every three months. Then in 2000, some time after April, she met a Taiwanese woman in a coffee shop in Chinatown. Because of the seriousness of the allegations against her, and the fact that she is apparently continuing her activities but has not been charged with any offence, I will refer to her only by her initials, LYF. (In the applicant’s statement of facts and contentions (Exhibit A6) LYF is referred to as Song Bin He, but I think that is a mistake.) After she related her difficulties and experiences to LYF, LYF said to her: “I can get you a genuine Australian passport. It will cost you $100,000”. The applicant’s sister Li (Lee Anne Cawthorne) said at the hearing that she understood LYF’s husband worked for DIMIA and could help people to do business in relation to visas. Another witness gave a different version of the husband’s role, however.
30. Subsequently, the applicant recovered her investment in the hydroponic farm through action taken by her brother-in-law, Donald Cawthorne, who at the time was a Wyong shire councillor. Mr Cawthorne told the migration agent in Adelaide that he intended to complain to his federal member about the scheme if he did not pay to the applicant the dividend promised in the contract. Payment was promptly made, and in due course the applicant recouped her whole capital.
31. The applicant then told LYF to go ahead and obtain the passport. At the same time, she asked LYF to arrange passports for her daughter and for her niece. In the application she represented the niece as being her own daughter. False Australian birth certificates were used to obtain all three passports, but the applicant was evasive on that point at the hearing. When asked if false birth certificates were used for all three passports, she replied that she did not understand. When the question was repeated, she answered only that: “All those things were posted from the post office”.
32. She was also evasive about whether she knew at the time that the passports were not genuine, answering: “I … perhaps … I’m not quite sure”. When the question was repeated, she replied after a long pause: “I regretted”. When the question was put a third time, she answered: “She told me it was legal but I doubted it and I was desperate”. Then paragraph 20 of her statement was put to her, in which she had written, “I knew that it wasn’t the right way to obtain a passport, and I knew that it wasn’t really legal”. She replied: “I just doubted it”. When that question also was repeated, she answered after a pause: “Sorry”.
33. She received the false passport in the name of Pamela Hao at about the end of June 2000. In about July 2000, she travelled to Taiwan on that passport, accompanied by LYF, who assured her that it would show that the passport was good. She remained in Taiwan for a week or two, but on her return to Australia the customs officer who examined her passport said there was something not quite right about it and confiscated it. The officer told her that she would need to go to the passports office to check it out. LYF later promised to pursue the matter for her.
34. The applicant did not, however, attempt to recover the passport from the passports office, and admitted that she made no attempt to do so because she knew it was not right. She heard nothing more from LYF.
35. After a few months, in about October 2000, she returned to China to live, using her Chinese passport with its Australian bridging visa. Her reason for leaving, she said, was that there was a festival at that time in China, she had not been to China for a long time and had business and company matters to attend to. She did not return to Australia, although previously she had travelled back and forth between Australia and China up to three or four times a year. It seems probable, however, that her leaving Australia at that time and not returning until she came as a New Zealand citizen in 2005, was at least in part prompted by her knowledge that the authorities were aware that she had used a false Australian passport and that adverse consequences were likely to ensue.
36. When in China, she applied for and obtained a New Zealand business or investment visa and moved to New Zealand in May 2001 with her daughter, using her Chinese passport. There she purchased a block of 10 apartments that today generate a rental income of approximately $2,000 per week. They cost her just over $100,000 each.
37. She also has a house in Epsom, Auckland, where she lives with her daughter and her mother. She obtained New Zealand citizenship in 2004, and her daughter is also a New Zealand citizen.
38. In March 2005, she came to Australia to visit her sister Li, who was on a temporary visa in Australia. When she arrived, she was detained and questioned by an immigration officer, and subsequently the Federal Police, about the Australian passport falsely obtained in 2000. She subsequently pleaded guilty to two counts of making a false statement for the purpose of obtaining an Australian passport and two counts of making a false statement in support of an application for an Australian passport for another person. She was imprisoned for six months at Emu Plains Correctional Centre, and upon her release on 8 September 2005, made a monitored departure back to New Zealand at her own request. She says her main life is now in New Zealand, and she came to Australia simply to visit her sister and her niece because they lacked the funds to visit her and her mother in New Zealand.
39. The applicant said that the criminal conviction had caused her great shame and loss of face, but at the time, she did it because she was desperate to remain in Australia, both so that her daughter could attend school on a regular basis and in order to fulfil the promise that she had made at her father’s death.
40. The applicant’s sister Li returned to China in October 1998, feeling disgraced by her sister’s failure to obtain an extended visa and by the way in which they had been cheated in Australia by Chinese people who they had thought would help them. After that, Li came to Australia only to visit her daughter, but in the course of one of those visits, in 2000, she met Donald Cawthorne and later married him. “Ping stayed in Australia”, Li said. “She said she had promised her father that she would fulfil his dream and she wasn’t giving up” (Exhibit A4).
41. Mr Cawthorne said that after the dispute over recovering her investment in the hydroponic farm, the applicant had known that her visa application was doomed: “She was in an absolute state of panic and she did not know how to face the rest of the family without having attained the Australian residency to sponsor and assist other family members with their application. I have no doubt that this failed situation led her to succumb to the suggestion from the Taiwanese woman to lodge the false passport application. It was this woman who was the agent for the NSW birth Certificates” (Exhibit A7).
42. Mr Cawthorne, who since 20 January 2005 has worked at the passport office, said that the applications were arranged through a person in a post office on the New South Wales south coast who received passport applications without asking questions or checking photographs or identification. He says that LYF likes it to be known that she has close links with the “black community” (the Vietnamese mafia) and that it is dangerous to cross her. “What I still don’t understand”, Mr Cawthorne said, “is that I still see this woman around the Sydney DIMIA building area having lunch with Asian migration agents”.
Character evidence in support of the applicant
43. The applicant called a number of witnesses, in China, Australia and New Zealand, to give character evidence in support of the application.
44. Elizabeth Hao is no relation of the applicant but has known her as a friend for between two and three years. Ms Hao works as a sales manager at the Crown Casino in Auckland, her duties involving offering “entertainment for the high-rollers”. She knows about the applicant’s convictions in relation to the passports but regards her as considerate and generous. She points out that the applicant lent $220,000 to a mutual friend, who desperately needed the money, without security, and by mortgaging her house. The applicant also helps Ms Hao with her children. She had committed her offences after being repeatedly cheated and because her daughter was unable to go to school. She conceded that the applicant could have stayed in China and sought a permanent residence visa through legitimate channels, but said that her statement related to her character and she considered her a good person. She knew the offences for which the applicant was convicted were serious, but felt that people can change. Asked what a person would have to do for her to regard them of bad character, she said it would have to be bank robbery, murder, rape or something of that nature.
45. Cliff Wong, an Auckland company director, took a somewhat similar view. In his mind, to be considered to have a bad character a person would have to be a terrorist or murder someone. The passport offences were not acceptable, but they could not affect the community. He has known the applicant for three years and considers her to be very reliable and generous. He viewed her as honest and trustworthy and said that the fact that she had been convicted once did not mean she could never be trusted again. She could not be a convict forever and deserved a second chance.
46. Mr Stephen Rainey, who recently retired (or semi-retired) after 24 years with IBM, married the applicant’s niece Yan Yan Hao in 2001. She is aged 24 and obtained permanent residency in 2004. They are temporarily separated, as Yan Yan returned to Beijing in February 2005. Mr Rainey described the family background and how he met his wife and the applicant. He has known the applicant since 2001 and learned of her conviction at the time it occurred, having attended the hearing or the appeal.
47. In his view, the applicant’s lawbreaking reflected the environment in which most Chinese people grow up. It is a society in which problems can be fixed by money, for those who have it. Her loss of face over her failure to obtain permanent residency did not justify her passport law violations but she had come from one culture to another one that did not have the same values. We were tending to judge her by our own cultural norms. As she was a successful business person within the family and after her father’s death was regarded as the family matriarch, the other family members were looking to her to assist them in starting a new life for the whole family as immigrants to Australia. Mr Rainey agreed that the promise she had made and the expectations aroused did not justify the offences. He said he did not condone serious crime as such.
48. Mr Sanqiang “Sam” Zhang, a finance consultant in Parramatta, has been a friend of the applicant for more than 10 years. He first met her in China in 1991 and came to know her as a hospitable, warm-hearted and trustworthy person. She had been successful in the real estate, renovation and construction industry in China. She was devoted to her daughter and her nieces and would make real sacrifices for their education and improved environment. Mr Zhang said the applicant had broken the law through her ignorance and credulousness. After visiting her several times in jail, he found her to be extremely regretful for what she had done and he thought that the punishment she had undergone would be more than enough to enable her to draw a lesson from it. She carries a great stigma in her family’s eyes as a convicted criminal. He conceded that paying money for a benefit to which one is not entitled does not reveal good character but he said that people make mistakes and that having accepted their punishment they should be forgiven.
49. Mr Jianting Wang works as a team leader in the Beijing Municipal Public Security Bureau. He has known the applicant since school days and they lived in the same Beijing suburb for a long time. He considers her a warm-hearted, straightforward person, friendly, helpful and always willing to assist others. He knew she had been sentenced to six months’ jail for passport offences, but was not aware of the details. He agreed that if the offences were committed “subjectively”, on purpose, that reflected badly on her character, but his own experience of her was that she was not someone who would do “these silly things”. That she had done so was “unbelievable”.
50. A statement by Mr Jian Dong Zhao was received in evidence (Exhibit A12), although it proved impossible to contact him in Beijing by telephone for cross-examination. Her former business partner, he had known the applicant and her family for 18 years. He described how they built up the development and construction business in Beijing over a period of two years during which time “we made a huge amount of money”. Then the applicant developed diabetes and thought that they would not be able to continue making money at that rate, so she asked Mr Zhao to buy her share of the business. He tried to convince her that they could carry on for many more years, but she insisted and he purchased her half of the company. Her plan was now to go to Australia and spend the proceeds of the sale of her share in the company to establish an Australian business and obtain residency. She would then bring her family to Australia and start a new life. He said she had an impeccable reputation in Beijing and that she was unlucky to have met the person who provided her with the passports, at a time when she was not thinking clearly, and feeling very depressed. He considers her generous, considerate and honest. She had been badly deceived by unscrupulous people who had taken advantage of her soft and trusting nature.
51. A letter was also received from Mr Zhi Jun Feng, mayor of Haidian council, who said he had known the applicant and her family for more than 20 years (Exhibit A10). His letter speaks highly of her but as it revealed no knowledge at all about her criminal convictions, it could not be given significant weight.
52. Also tendered to the tribunal were statements from Lee Ann Cawthorne (Li Hao), Donald Cawthorne (including an amended statement), Stephen Rainey, Cliff Wong, Elizabeth Hao, Sanqiang Zhang, Jian Dong Zhao, Zhi Jun Feng and Jianting Wang. All these attested to the applicant being an honest and caring person.
Application of the Law and Findings of Fact
53. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Ms Hao passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
54. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Ms Hao does not pass the character test, I must consider whether to exercise the discretion in s 501(2) not to cancel her visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
55. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of his or her past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)); or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
56. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
57. In this case, the applicant committed identity fraud by paying US$50,000 to obtain a false passport for herself, including submitting a false birth certificate, and using the false passport to travel between Australia and Taiwan. She also paid US$100,000 to obtain two further false passports for her daughter and her niece respectively, falsely declaring that her niece was her daughter, and also using false Australian birth certificates. She was convicted for these offences and sentenced to six months’ imprisonment on each of the four counts to be served concurrently.
58. Those offences fall within paragraphs 1.9(b) and (c) of the direction and the respondent does not dispute their seriousness. On their own they would justify a finding that the applicant does not pass the character test.
59. On behalf of the applicant Mr Jackson argued, however, that a different conclusion should be reached if one considers, as one must, her character at the present time, taking an overall view that gives proper weight to the favourable evidence about her. He pointed out that there was only one incident of law-breaking five years ago and that she had expressed remorse and paid dearly for it. Others, more than she, had explained the circumstances of her fall. She was in part a victim of predatory migration agents. She had been a successful businesswoman in China who wanted to keep her promise to her late father to take the family to another country where their wealth would be safe. Others took advantage of a wealthy woman at a time when she was vulnerable and under family pressures and despondent over the disruption of her daughter’s education. He highlighted the evidence of Mr Rainey, who gave some idea of the different culture from which the applicant came, one in which people with money could solve their problems by making payments to corrupt officials. That had proved an unfortunate education for life in Australia where problems of that kind may not be solved in that manner. She was now a different person who had learned her lesson, as could be seen from the favourable evidence from New Zealand where she had led a good life and has given active support to good causes such as children’s charities.
60. It should be pointed out, however, that the inconvenient obligation to leave the country every three months pursuant to her bridging visas, and the consequent disruption of her daughter’s schooling, were not really misfortunes that befell for reasons beyond her control. They were the inevitable result of attempting to migrate to another country without first obtaining the appropriate visa. She used the proper methods to apply for her New Zealand visa and was successful. Whether she would have been successful if the New Zealand authorities had been aware of her adventures in passport fraud may be another matter. The point is that she had applied in a regular manner for a business visa before moving to New Zealand and thereby avoided the kind of disruptions she experienced through the method she adopted to come to Australia. For the same reason, she was not vulnerable there to unscrupulous migration agents.
61. By the same token, her conduct cannot be regarded as impulsive, but rather was part of a consistent effort to remain in Australia that culminated in an attempt to short-circuit the process by obtaining evidence of citizenship by criminal means.
62. She returned to China to live in October 2000, departing on her Chinese passport with its Australian bridging visa. At one point she explained her departure by saying that she was disheartened by the failure of her efforts to obtain residence in Australia and simply gave up the attempt. At the hearing she explained her return to China by saying that she wanted to attend a festival, that she had company and business matters to attend to and had not been to China for a long time. None of those reasons in plausible. Her business partner related how he had bought out her interest in the company in 1997, and there is no evidence that she had any other remaining business interests in China. It had not been a long time since her last visit to China, as she made regular visits back and forth during her time in Australia. The probable reason why she left for good in October 2000 is that her bogus passport had been confiscated by customs shortly before and, as an intelligent woman, she must have been aware that prosecution was a distinct possibility. By returning to China at that time she could both avoid prosecution and apply for a New Zealand visa in circumstances in which she had no convictions recorded against her.
63. I accept the evidence of her friends and family that she is kind, generous and charming in her personal dealings. But in cases of this nature one often sees applicants who have admirable qualities in their private lives but who are totally unscrupulous in their dealings with immigration law and DIMIA officials. Direction No 21 makes it quite clear that migration law violations are a serious matter that counts heavily against non-citizens who are seeking to enter or remain in Australia. The applicant may well have led a blameless life in New Zealand since the offence, but for these purposes, it is her conduct in an immigration sense that is relevant, as Deputy President McMahon said in Re Msumba (supra) at paragraph 40:
The evidence … as to the applicant’s general character is no doubt accurate and certainly represents [the witnesses’] subjective assessment of the applicant’s general character. What is required to be identified, however, is his conduct in an immigration sense. It has been characterised over a period of years, up to and including the present application, by falsehood, deceit and concealment. There has never been a full disclosure of the applicant’s own personal involvement in this conduct. There have been denunciations of others for actions for which the applicant should take full responsibility. His failure to do this must be considered a failure to exhibit any counterbalancing good conduct.
64. At no time did the applicant come forward of her own accord to explain the bogus passport, making disclosure only after the passport had been confiscated and she was being questioned by the police. On key points in her oral evidence before the tribunal she was evasive and unconvincing, notably in relation to what she knew about the manner in which the bogus passports were procured and whether she knew at the time that the passports were false. Her speedy return to China in October 2001 and prompt application for a New Zealand visa bear the hallmarks of opportunism and artfully staying one step ahead of the authorities.
65. Mr Jackson’s reliance on Mr Rainey’s evidence about the background in which the applicant grew up does not assist the applicant’s case, nor does Mr Rainey’s proposition that it is inappropriate to judge by our cultural norms someone who comes from a different value system. Making judgments of the basis of our law and its character requirements is precisely what Australian courts and tribunals should be doing.
66. In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, the Full Court of the Federal Court pointed out that the term “general conduct” inherently implies universality but does not necessarily incorporate qualities of frequency or prevalence. At page 195 their Honours stated that “[S]ome instances of general conduct … displayed but once or twice, may lay character bare very tellingly”. In this case the passports affair formed part of a pattern that has continued to the present day, as the applicant’s evidence at the hearing suggested.
67. I therefore conclude that the applicant fails the character test in s 501.
68. As was noted above, the applicant’s case was conducted on the basis that the issue was the character test itself. As the applicant is living in comfortable circumstances in New Zealand, has New Zealand citizenship and is living with her daughter, also a New Zealand citizen, and her mother, it would not be easy to make a strong case for exercising the discretion in her favour. Mr Jackson’s submissions at the close of the evidence therefore did not touch on the exercise of the implied discretion. In her submissions on behalf of the Minister, however, Ms McNamara made some reference to discretionary issues and accordingly, in his reply, Mr Jackson made some brief submissions on that matter which it is necessary to consider.
69. That entails deciding whether to exercise my discretion under s 501(2) to decide, nevertheless, whether not to cancel Ms Hao’s subclass 444 special category visa. In exercising this discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
70. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c) serious crimes against the Migration Act including, but not limited to, presenting false or forged documents or making a false or misleading statement in connection with entry into Australia.
71. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
Protection of the Australian Community
72. As regards the first primary consideration under this heading, the seriousness and nature of the conduct involved, it is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on the tribunal, states in paragraph 2.6(c) that serious offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. Ms Hao fraudulently obtained three passports for the sum of US$150,000, (she acknowledged this amount to immigration officials when questioned on 9 March 2005) which were used in connection with her stay in Australia and travel to Taiwan.
73. In her statement of facts and contentions (Exhibit A6), the applicant’s counsel submitted:
By 2000, Mrs Hao had not been successful in securing a permanent resident’s visa. Mrs Hao paid $100,000 to a Taiwanese woman, [LYF], who procured a false passport for her.
Mrs Hao travelled used [sic] the passport once only, on a trip from Australia to Taiwan and back, at the urging, and with, [LYF]. The passport was confiscated upon her return, and she made no attempt to reclaim it, or obtain a further passport.
…
Mrs Hao is not a person of bad character. The crime was not at the higher end of criminality, attracting a sentence below the level at which a person is deemed to be of bad character. Moreover, Mrs Hao has no other criminal record, and there is no suggestion of other criminal conduct.
74. The respondent in her statement of facts and contentions (Exhibit R1) submits that the conduct should be considered as very serious given that using false documents falls within paragraph 2.6 of Direction No 21 and that her conduct potentially amounted to an offence under s 234 of the Migration Act which attaches penalties of up to $10,000 or 10 years imprisonment. At the time of the offence the maximum term was two years, but the fact that it had been sharply increased demonstrates increasing concern over offences of this type. The respondent submits her offences should be regarded as very serious. Sam Zhang and Donald Cawthorne, witnesses for the applicant, agreed that they were serious but thought people could change. Jianting Wang thought that such an offence, if done on purpose, was bad.
75. There could scarcely be a more blatant breach of migration law than procuring three bogus passports and I find that the offences were very serious.
76. Next, the tribunal is to take into account the risk of recidivism in considering the protection of the Australian community. The respondent submitted that the applicant has shown a pattern of disregard for the law because she not only engaged in fraud on her behalf, but on behalf of others (Exhibit R1). Counsel for the applicant did not address this issue in his statement of facts and contentions (Exhibit A6), though aspects of his submissions on the character issue bore on it. At the hearing counsel said that any future law-breaking was most improbable. All her witnesses had said she had been mortified by her experience of incarceration and that the harsh lesson administered to her had served its purpose. At the same time, I must bear in mind what the tribunal said in Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714 at paragraph 33:
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.
77. The applicant’s offences were multifaceted and of a particularly gross nature. Her evidence at the hearing was less than candid and lacked credibility in several material respects. If she were to find herself under pressure again in the future, she could once again relapse. Although I do not regard the risk of recidivism in this case as high, I do not think it can be excluded altogether.
78. The third consideration relevant to community protection is general deterrence, which aims to deter others from committing the same or similar offences. “Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa” (Direction No 21 paragraph 2.11). Deterrence is a factor shown by contemporary research to play a more important role in crime causation than had previously been thought (see Re Sam andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003 paragraph 31). Published works attacking deterrence as a relevant factor tend to rely on theoretical arguments or assertions and do not mention any empirical evidence (e.g. J McGuire, Deterrence in Sentencing: Handle with Care (2005) 79 ALJ 448). The deterrent effect of a particular decision is impossible to measure in advance, but it is safe to say that exercising the discretion in favour of not cancelling the visa in a case involving such a serious offence as multiple passport fraud would send an entirely undesirable message to non-citizens contemplating, or currently engaging in, criminal activity. In Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, the tribunal, at paragraph 47, described the rationale for that approach in these words:
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.
Expectations of the Australian Community
79. The second primary consideration is set out in paragraph 2.12 of Direction No 21 and states that the community expects non-citizens to obey Australian laws while in Australia. Failure to do so may make it appropriate to cancel such a person’s visa. “Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concern or offences are such that the Australian community would expect that the person … should be removed from Australia”.
80. As Deputy President Duncan Chappell said in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 at paragraph 84:
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.
81. In my view the community would take the view that a person who procures three Australian passports by fraudulent means including the tendering of false Australian birth certificates has forfeited any right to an Australian visa.
The Best Interests of the Child
82. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
83. In this case, the applicant has a daughter, Mandy Zhao, aged 16 who resides in New Zealand with the applicant. No evidence in relation to the applicant’s daughter was filed with the tribunal and she was not called to give evidence, nor did counsel make any submissions on the point. I do not consider that she would suffer any hardship if Ms Hao’s visa were cancelled, as she would be able to continue to reside with her in New Zealand.
Other Considerations
84. Having applied the primary considerations, the tribunal is then required to take into account a number of other considerations to which a decision-maker is directed by Direction No 21, which, though generally given less individual weight than that given to the primary considerations, may have a bearing on the appropriate decision. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
85. The applicant’s daughter and mother reside in New Zealand with her and there would be no disruption to their lives if her visa was cancelled. The applicant has two sisters who reside in Australia, Lee Cawthorne (Li Hao) and Ling Hao, who would be able to visit her in New Zealand. The tribunal notes that in the statement of Mrs Cawthorne, she makes no reference to any adverse effect or hardship to her if the applicant’s visa is cancelled. The applicant’s counsel made no submissions on this consideration and I do not think it commands significant weight.
86. In my view the considerations of community protection and expectations are decisive in this case. There are insufficient reasons for exercising the discretion in the applicant’s favour. The decision under review should be affirmed.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 16 and 17 November 2005
Date of Decision 25 November 2005
Counsel for the Applicant Mr C Jackson
Solicitor for the Applicant Mr B Halligan, Legal Migration Services
Solicitor for the Respondent Ms K McNamara, Phillips Fox lawyers
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