Jiang and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 666

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 666

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1209

GENERAL ADMINISTRATIVE DIVISION		)
Re		Jiang Shu Qin

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date12 July 2005  

PlaceSydney

Decision The decision under review is affirmed.

[Sgd]  Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – spouse visa – refusal of spouse visa on character grounds – past and past general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – necessity to consider the protection and expectations of the Australian community – examination of the visa applicant’s immigration history – decision under review affirmed.

Migration Act 1958 ss 499, 501, 501(6)(a),

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

Re Feng and Migration Agents’ Registration Authority [2002] AATA 709

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

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

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

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

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576

REASONS FOR DECISION

12 July 2005	Professor GD Walker, Deputy President
Summary

1.           The visa applicant, Wang Guo Zhang, who is aged 35 and a citizen of the People’s Republic of China, arrived in Australia on a short-stay business visa on 22 March 1997.  On 31 October 1997, he applied for a long-stay business visa which was refused.  On 13 March 2000, he applied for a protection visa which was refused.  He departed Australia on 8 June 2003 and on 30 June 2003 applied for a subclass 309 spouse (provisional) visa to reside in Australia with the applicant, Jiang Shu Qin.

2.           The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Wang fails the character test under s 501 of the Migration Act 1958 (“the Act”) on the grounds that he entered Australia on a fraudulently obtained business visa which contained false and misleading information, that he obtained an extension of this visa using false and misleading information, he applied for a protection visa using false and misleading information, he breached the conditions of a bridging visa, he remained in Australia as an unlawful non-citizen, and he was locating working without permission.  The respondent therefore refused Mr Wang’s spouse visa application.  This is the decision to be reviewed by the tribunal.

Background

3.           The applicant, Jiang Shu Qin, was born in Tianjin City, People’s Republic of China, on 17 November 1955 and is aged 49.   Ms Jiang was granted Australian citizenship, in the name of Shuqin Perederienko, on 26 January 1985 (T p150).  Ms Jiang married her first husband, Leonid Perederienko on 14 February 1977, the marriage ending in divorce on 2 April 1999 (T p268).  Ms Jiang has two children from this marriage, a son, Alex Perederienko, now aged 25, and a daughter, Anna Perederienko, now aged 22, both of whom reside in Australia.   On 10 August 2000, Ms Jiang registered her name as Shu Qin Jiang with the Registry of Births, Deaths and Marriages, Sydney (T p147).  She is employed as a personal care worker.

4.           Mr Wang was born in Tianjin City, China, on 13 December 1967 and is aged 35.  On 12 April 1992, he married Chen Xin, the marriage ending in divorce on 13 January 2001 (T p266).  He has one child from this marriage, a son, Wang Bao Kai, born 26 January 1993, aged 12, who lives in China (T p208).  Mr Wang arrived in Australia on 22 March 1997 on a short-stay business visa granted for two years, which was extended, valid until 18 December 1997 (T p36).  On 31 October 1997, Mr Wang applied for a business (long-stay) (independent executive) visa and an associated bridging visa (T4 p34).  On that day he was granted a bridging visa valid until 15 April 1998 (T p53).  On 25 February 1998, Mr Wang’s business visa application was refused (T7).  On 15 April 1998, Mr Wang became an unlawful non-citizen in Australia.

5.           On 13 March 2000, Mr Wang lodged an application for a protection visa on the grounds that he was a member of a Christian Church forbidden by the Chinese government and that while undertaking underground church activities he had been arrested and tortured by the Public Security Bureau.  He stated that if “I were to be sent back to China I will definitely be deprived of my religious freedom, though I do not know what kind of persecution that I will be faced with” (T15 pp71-84).  On the same day, he was granted an associated bridging visa C subject to condition 8101 no work (T17 p86).  His protection visa was refused on 5 April 2000 (T19 p89) and the decision affirmed by the Refugee Review Tribunal (“RRT”) on 5 March 2001 (T p101). 

6. On 5 August 2000, Mr Wang and Ms Jiang met at a friend’s house in Sydney (T p212, 283) and on 8 February 2001, they commenced living together (T p212). On 30 April 2001, Mr Wang applied for a bridging visa E to enable him to apply for ministerial intervention (T21 p109). This was granted on 17 May 2001 expiring on 17 July 2001 subject to the conditions of residing at a specified address, advising the department of change of address, no work, and no study (T pp118, 121). On 19 April 2001, Mr Wang applied for ministerial intervention under s 417 of the Act (T23 p115). On 17 July 2001, Mr Wang became an unlawful non-citizen in Australia for the second time. On 14 August 2001 ministerial intervention was refused (T26 p122).

7.           On 17 April 2003, Mr Wang was located at his then place of residence and, after resisting apprehension, was detained at the Villawood Immigration Detention Centre, New South Wales (T p334).  When questioned, he stated that he had worked at various casual positions since his arrival and that he wished to remain in Australia as he was going to marry his girlfriend (T p134).  On 24 April 2003, Mr Wang lodged an application for a bridging visa E (T p144).  With the application he provided an itinerary for returning to China, but no evidence that the booking had been paid for (T p135).  This application was refused on 29 April 2003 and the decision affirmed by the Migration Review Tribunal (“MRT”) on 12 May 2003 (T33 p130).

8.           On 1 June 2003, Mr Wang and Ms Jiang were married in a civil ceremony at the Villawood Immigration Detention Centre, Sydney (T p241).  On 8 June 2003, Mr Wang returned to China as a supervised departure (T p8).

9.           On 20 June 2003, Ms Jiang’s migration agent, Ting Gu of EZTone International lodged an application for a spouse visa with the Rocks office of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) for forwarding onto DIMIA in Shanghai (T57 p225).  Receipt of the application was acknowledged on 16 September 2003 (T p293).  On 26 September 2003, Mr Wang was interviewed by a senior migration officer at the Australian Visa Office in Shanghai (T p282).  Ms Jiang was also interviewed on that day.  She told the interviewer that she knew Mr Wang was illegally in Australia before they commenced living together (T p288).

10.          On 6 May 2004, a senior migration officer at the visa office informed Mr Wang that he was considering refusing his spouse visa application on the ground that he did not pass the character test because of his past and present general conduct including providing false and misleading information in connection with his short-stay and long-stay business visas, the provision of false and misleading information in his protection visa application and in oral evidence given to the RRT, that he was an illegal immigrant in Australia for a total of 43 months, he breached the conditions of a bridging visa and worked without permission and inviting him to comment of his decision (T66 p299).  In submissions received by the senior migration office in Shanghai on 16 June 2004, Mr Wang admitted that he asked a friend to obtain a visa for him to come to Australia and that he was not aware of the contents of the application nor was he aware of the contents of the business visa application made in Australia. In relation to his protection visa application; he was involved with an underground church and that he had been questioned by police, but said that the church no longer existed; that he made “a big mistake” in overstaying his visa and that he had to work to support his then de facto who was in poor health and is still in poor health, and that he was not a person of bad character.  He stated that while he had made the mistakes in his migration history, he would never make such mistakes again (T67 pp304-307).

11.          On 17 June 2004, Mr Wang was interviewed a second time at the visa office in Shanghai (T68 p308).  At that interview he stated that he paid 50,000 RMB for the visa, money that he had borrowed from a friend; he did not know what type of visa it was, that he just wanted to leave China; he knew that he applied for two further visas to stay in Australia which contained false information; he applied for a protection visa because he had friends who had done the same and he wanted to stay in Australia; he commenced work two months after his arrival; and that when he was living with his wife he seldom worked because she had a job (T68 p308).

12.          On 26 August 2004, a delegate of the minister decided to refuse Mr Wang’s subclass 309 spouse (provisional) visa on the ground that he did not pass the character test because of his past and present general conduct and having elected not to exercise her discretion to grant him a visa (T2).  On 22 September 2004, Ms Jiang lodged an application for a review of this decision by the tribunal.

13. At the hearing, the applicant was represented by Leonard Karp, counsel, instructed by Ren Zhou lawyers, and the respondent was represented by Tim Webb, solicitor, Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with evidence tendered by the parties at the hearing. Ms Jiang gave oral evidence in person and Mr Wang gave oral evidence by telephone from China.

Relevant Law and Policy

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

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

…                  

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

…

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

the person is not of good character; …

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

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

17. Before the hearing, the applicant conceded that there is reasonable cause to believe that Mr Wang is not of good character having regard to his past and present general conduct, in particular because he made false and misleading statements in his business visa applications and that he did not intend to transact business in Australia, he worked without permission for an extended period of time and remained in Australia as an unlawful non-citizen. At the hearing, however the applicant modified that concession, stating that Mr Wang admitted the contraventions alleged and acknowledged that, because of them, Mr Wang might not be able to satisfy the Minister within the terms of s 501(1), but did not concede the general issue of character as such. In the course of his submissions, the applicant’s counsel further limited the concession by stating that the contraventions relating to Mr Wang’s short stay business visa were denied.

Issue

18. The issue for the tribunal in this case is, therefore, whether Mr Wang is of good character having regard to his past and present general conduct so as to be precluded from grant of a subclass 309 spouse (provisional) visa. If the tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence relating to character

19.          Mr Wang gave evidence by telephone from China.  A Cantonese interpreter was sworn in to assist with the giving of his evidence.  Ms Jiang gave oral evidence in person with the assistance of a Mandarin interpreter, the same person who translated fro Mr Wang.

20.          Given the limited nature of the concession referred to above, and bearing in mind the requirements of Direction No 21, it is appropriate to examine the evidence relating to the particular aspects of his conduct claimed by the respondent to indicate that he is not of good character. 

21.          The first allegation was that Mr Wang made false statements and presented false documents in his application for a subclass 456 business (short stay) visa, the basis on which Mr Wang entered Australia.  Mr Wang dealt with this and a number of allegations in a letter to the departmental officer at the Shanghai embassy dated 14 June 2004.  At the hearing Mr Wang acknowledged that he had written that letter, that it was translated into English for him and that the translation might have been read back to him again in Chinese.  In the letter Mr Wang acknowledged that contravention and apologised for it, but said that he knew nothing of the application’s contents as it had been prepared by an agent on his behalf, who had completed the form and drawn up the attachments.  A friend had told him that he knew an agent (a company), that could arrange a visa for him to go abroad.  He paid the friend 50,000 RMB (about $8000 at current rates), but said he had no idea whether the friend paid the money to the agent or whether he paid part of it.  Mr Wang said that he did not sign the application, because he could not sign his name in English.  It was not necessary for him to do, however, and in fact in all but one of his applications and signed communications, he signed his name in Chinese. 

22.          In his submissions on behalf of the applicant Mr Karp contended, in relation to this and other contraventions, that Mr Wang had little education and might see the world differently, and approach problems differently, from the way a more educated person might.  His actions were plausible for someone who, he had said at the hearing, had no contact with any foreign embassies in China before coming to Australia.  He could have been taken in by Chinese people he had met in China, on the flight to Australia and in Australia. 

23.          That explanation, however, does not account for the full range of his contraventions, including the false application for his original visa.  At the time of that application he was aged 28, married and had one child.  In 1985 he had completed his high school studies and had contemplated undertaking tertiary studies in a field of technology but decided instead to go into business on his own, as “I wanted my family to be richer and let my parents live a happy life”.  Exactly how long he conducted that business is not clear, but it was at least four years and possibly up to 10 years.  Apparently it was successful enough for him to be the main or sole provider for his family and to accumulate considerable savings, which his wife appropriated when she left him.  By 1992 “my life was getting better and better, richer and richer”.  He was often required to be away on business, a circumstance that had the unwanted consequence that in 1996 he discovered that his wife was having an affair with another man, with whom she had established a residence away from the matrimonial home.

24.          He also worked for some months in a steel mill.  Even if, it seems likely, he had never contacted a foreign embassy when in China, a man of his obvious intelligence and experience would have had no difficulty in doing so and in finding out what procedures had to be followed.  The Australian embassy, like most other foreign delegations, has locally recruited staff who can explain these matters to local residents in the language of the country.  The fact that Mr Wang made no attempt to contact the embassy, but instead paid a friend a substantial (by any standards), amount of money, much more than would have been charged by any embassy, to arrange a visa for him through a third party he never met strongly suggests knowledge that he was not going about obtaining a visa in a lawful way. 

25.          Mr Wang’s statement that he had no idea if his friend paid the 50,000 RMB to the agent was the first of at least fourteen instances at the hearing in which Mr Wang replied that he had “no idea”, in response to material questions about matters directly affecting the legality of his stay and behaviour in Australia and about which one would expect a man of his acumen to have personal knowledge.  Those responses did nothing to enhance his credibility. 

26.          The next claim made by the respondent is that Mr Wang made false statements in his applications for two extensions to his subclass 456 business (short stay) visa, which were granted on 18 June 1997 and 18 September 1997 respectively.  Mr Wang said that he believed that his short stay business visa allowed him to remain in Australia for five years.  About six months after his arrival in Australia, however, a friend he had met on the flight, Mr Feng Jing Bao, told him that the visa, though valid for five years, permitted him to stay only for multiple periods not exceeding three months each. 

27.          As Mr Wang was afraid of breaching the migration law, his friend helped him to find a migration agent who made the two applications to extend his visa.  At the hearing he said that he had never met that agent either, but had paid him $1000, in two instalments, to arrange the extensions.  In the letter of 14 June 2004 he said that he “just told the agents [apparently directly] that I wanted to extend my Visa”.  “They did not ask me for anything but the fees…..I knew no English and all the contents in the Visa extension applications must have been put in by the agents.  Even today, I do not know what was put in my onshore visa extension applications”. 

28.          In oral evidence he also said he had no idea that he was actually applying for extensions.  Mr Feng simply took his passport away and he had no active involvement in the matter and no direct contact with the agent.  When it was put to him that the letter of 14 June 2004 appeared to indicate that there had been direct contact with the agent, he simply replied that his friend had located the agent for him. At the hearing Mr Wang said that he had no idea that his business visa expired on 22 June 1997, no idea if he applied to extend it on 18 June 1997 or that the second extension expired on 18 December 1997. 

29.          Indeed, he initially said that he had no idea whether he knew in September 1997 that he needed to seek renewals every three months, but when pressed admitted that he had been so aware.  He claimed to have no idea about anything connected with the extensions, which were dealt with by his friend through the agent.  It seems probable that, while Mr Feng did find the agent for him, Mr Wang did have direct contact with him, that he asked the agent to apply for extensions and knew that he was applying for extensions.  He either knew that false statements were going to be made on the applications or did not care whether the information supplied was true or not. 

30.          Next, the respondent alleged that Mr Wang made false statements and presented false documents in his application for a subclass 457 business (long stay) visa made on 31 October 1997.  That application included an elaborate and completely fictional description of his qualifications, previous experience, business activities in Australia, research, corporate identity, staffing proposals, net assets (allegedly amounting to US$3,000,000), personal role in day-to-day operations, business links with China and south-east Asia and his partnership arrangements with an Australian managing director (T pp 41-44).

31.          At his interview in Shanghai on 17 June 2004 Mr Wang admitted that the application for the subclass 457 long-stay business visa was false and misleading, but in examination-in-chief said he had no idea whether he had even lodged a subclass 457 application in October 1997.  In cross-examination he said he could not recall that application, but when pressed said that he could, and that he had in fact made the application.  He maintained, however, that he had no idea whether that application was based on his proposed business activities or about any of the contents of that application.  He had no idea that the subclass 457 application had been refused because he lost contact with his agent.  He never attempted to follow up the application or to check on its status in any way.  He had no idea when he learned that the long-stay business visa had been refused, or indeed whether he had ever learned that it had been refused.  When asked why he applied for a protection visa if he thought his long-stay business visa application was still pending, he replied that a friend had told him he was eligible for such a visa because he was a Christian. 

32.          Here again, the contradictions in Mr Wang’s evidence, his claims of total ignorance about anything to do with the application, his failure to follow up or check on the matter’s status and his general professed lack of active interest in the outcome of an important application that had cost him $1500 are less than convincing.

33.          Next, the respondent expressed serious doubts about the validity of Mr Wang’s claims in his application for a subclass 866 protection visa, lodged on 13 March 2000. 

34.          To that application was annexed a written statement signed by Mr Wang, stating that he was an adherent of an “underground” Christian church in China conducted by a Pastor Ye and had to flee the country for protection because the members of such churches were severely persecuted by the Chinese government.  He related inter alia how he had been baptised into that church in September 1984, and had become an assistant to Pastor Ye in 1989, eventually quitting his job at the steel mill to devote himself completely to the church activities. 

35.          After Pastor Ye was arrested, his family persuaded him to escape from Tianjin City, and he departed for Shen Yan City, where he remained for over a year.  He then returned to Tianjin and in 1996 was arrested and tortured by the Public Security Bureau.  He was eventually released but warned not to be involved in any underground church activities.  He did not, however, relinquish his church activities, and his family and friends, concerned for his safety, “helped me to find a way to leave China and to escape the darkness.  I prayed before God, expecting his Spirit would come on the land of China, however, to my disappointment I always saw and heard how brutally the Chinese government persecuted the religious believers”. 

36. The Minister’s delegate refused to grant a protection visa on 5 April 2000, and on 4 May 2000 Mr Wang lodged an application for a review of the decision with the Migration Review Tribunal (MRT). On 5 March 2001 the RRT affirmed the delegate’s decision, noting in its reasons that “Unregistered ‘house’ churches keep a private and low profile, their main interest [being] to practice their religion in their own way. The Chinese government knows of their existence but does not regard them as a serious threat and seems to tolerate their unofficial existence” (T p106). On April 2001 Mr Wang by letter requested the Minister’s personal intervention under s 417 of the Migration Act in respect of his protection visa application. On 7 August 2001 the Minister decided not to exercise his discretion in Mr Wang’s favour.

37.          It is clear that the statement lodged with the protection visa application is far from the truth.  While there is nothing to contradict Mr Wang’s assertion that he was a member of an underground church in Tianjin conducted by a Pastor Ye, his evidence to the tribunal was consistently that he left China because his first marriage had broken down and his wife had absconded with their savings, leaving many debts behind.  Indeed, he said it was because his friend saw how despondent he was at the marriage break-up that he offered to make arrangements for an Australian visa if Mr Wang would pay him 50,000 RMB. 

38.          In his examination-in-chief, he said that the only problems he had experienced with the Chinese government came after the 1989 protests when he was questioned in connection with his possible association with “an anti-violence movement”.  He had sought a protection visa because a friend had told him that, as a Christian, he was eligible to apply and also because in fact he had been questioned by the police.  He thought it might have been his friend who located the migration agent Simon Feng for him.  He later met Simon Feng but said that although he had signed the document he had not read what had been written in it. 

39.          The applicant, Ms Jiang, gave evidence to a similar effect.  She said in cross-examination that Mr Wang had told her that he had experienced some persecution when he was young, but it was not the reason for his applying to come to Australia.  She became rather evasive in response to other questions about his claims of religious persecution, saying that she knew nothing about his protection visa application because he had not “formally” told her about it.  The RRT’s view that members of underground churches are not persecuted in China also supports the conclusion that the protection visa application was not factually based. 

40.          As regards the processing of the protection visa application, Mr Wang said he could not recall receiving the letter of 5 April 2000 (T p89) informing him that the protection visa had been denied, because it was too long ago for him to recall.  Subsequently he admitted that he could recall seeing it.  At first he said that he did not know whether Simon Feng had told him he could appeal to the RRT, and indeed knew nothing about the RRT itself, but later admitted that Mr Feng said that he could appeal.  He said he could not recall signing the appeal application form, but later said that he did sign it or might have signed it.  He later admitted that he could recall the RRT application, but could not remember being informed that the delegate’s decision had been affirmed (T p98), because it was a long time ago. 

41.          The evidence points to the conclusion that Mr Wang applied for a protection visa because he thought that a semblance of a case could be based on the fact that he was Christian and that he had been questioned by the police, though for reasons unconnected with religious activity, but he had never been persecuted in China on religious grounds and did not fear any such persecution in the event that he should return there.  He maintained what he knew to be a substantially false case throughout the appeal to the RRT (though he did not attend the hearing) and the unsuccessful request for ministerial intervention. 

42.          Mr Karp pointed out that Simon Feng had been disqualified as a migration agent in 2002 for, inter alia, encouraging hopeless visa applications based on claims that he knew, or had good reason to know, were false (see Re Feng and MigrationAgents’ Registration Authority [2002] AATA 709). Consequently the claims made in connection with the protection visa application (T pp83-84) might have been entirely fabricated by Simon Feng. But that document contains references to such matters as Pastor Ye and his underground church, Mr Wang’s movements inside China and his work at the Tianjin steel mill, which suggest that Mr Wang collaborated in its preparation. The fact that Simon Feng was deregistered as a migration agent for making false claims, among other things, could mean that Mr Wang was an innocent victim of an unscrupulous agent. It could also mean, however, that he engaged an unscrupulous agent precisely because he knew that such a person was more likely to make false claims in order to provide a foundation for a protection visa application.

43.          On the evidence, therefore, I conclude that while Mr Wang may have been a member of an underground Christian church in China, he suffered no persecution by reason of that fact and had no fear, or reason to fear, persecution on religious grounds if he were to return to China.  He made a protection visa application which he knew to be substantially false and continued the process throughout the RRT and ministerial intervention phases. 

44.          The next episode relied on by the department was that when Mr Wang was located by departmental officers on 17 April 2003, he tried to abscond, resisted apprehension, fought, bit and punched the officers and was eventually handcuffed in order to be detained.  He was placed in immigration detention at Villawood. 

45.          Mr Wang said that the incident needed to be viewed in the context of the fact that there had been burglaries in the area when Mr Wang and Ms Jiang were living at Hinchinbrook.  Soon after they moved in, a television set had been stolen from the sunroom at the back of the house.  A neighbour’s house was also burgled, but the property was recovered.  The departmental officers arrived after dinner, at which the couple had entertained two visiting friends.  He heard the doorbell and went to investigate, apparently not to the front door but to the back door.  Thereupon somebody forced him to the ground and handcuffed him.  The two people concerned had come from the back of the house.  He had little understanding of English and did not know what was happening.  He tried to rise to his feet and asked them what they intended to do, but they started to punch him without answering.  He did not know why he was taken to Villawood immigration detention centre, but was there told that his visa had expired. 

46.          Ms Jiang’s account was materially different, however.  She denied that there were any security problems at the Hinchinbrook house at the time.  Although there had been a theft from the sunroom early on , all the doors and windows had since been fitted with security screens and the fences around the property were high.  On the evening in question, two officers, a man and a woman, came to the front door.  Speaking English, the woman asked if Mr Wang lived there.  Ms Jiang replied that he did, and the officer asked to talk to him.  Ms Jiang agreed and admitted them, but then she heard a fight in the backyard.  She then saw Mr Wang in handcuffs and with his mouth bleeding.  He was then taken to Villawood, and while he was there, they were married in a civil ceremony at the detention centre on 1 June 2003. 

47.          Ms Jiang’s version is much more probable.  There were no particular security problems at the house by that time, and even if there had been, burglars do not ring the front doorbell at dinner time and ask to speak to one of the residents.  The strong probabilities are that Mr Wang heard the door bell, heard the officers ask for him and tried to escape through the back door, where the violent affray occurred as the officers described. 

48.          The respondent also stated that Mr Wang was an unlawful non-citizen from 15 April 1998 to 13 March 2000, 2 May 2001, 17 May 2001, and 15 August 2001 to 8 June 2003, and made no attempt to regularise his status in Australia.

49.          The applicant did not dispute having been in Australia unlawfully, or the dates given by the respondent.  Indeed he admitted it in his letter to the department dated 14 June 2004, “My illegal stay in Australia for 43 months and illegal obtaining permanent work – I admit that I made the big mistake.  I breached the Australian migration laws and rules”. 

50.          At the hearing, however, he maintained that he did not know that his status was unlawful and he was told about it when held in detention in Villawood after his apprehension in April 2003.  He said that both he and his wife were unconcerned about his migration status because he thought his protection visa application was still being processed and because he was paying tax on his earnings.  He admitted knowing that he was on a bridging visa E in connection with his application for ministerial intervention.  That visa was issued on 19 April 2001 and expired on 17 July 2001.  Though admitting that he knew he was on the bridging visa, he said he could not recall receiving the letter informing him about it dated 17 May 2001 because he “received quite a few letters” from the department. 

51.          Mr Wang discovered soon after his arrival in 1997, if he did not know before, that it was necessary to keep renewing his visa.  It is not credible that he was unaware of three separate periods of unlawful presence totalling 48 months or of the need to take active steps to ensure that his stay remained lawful.  Nor is it credible that as late as April 2003 he thought he was still lawfully present because he thought his ministerial application was still being considered.  He knew he was on a bridging visa E pending determination of his request and could not reasonably have thought that there was no need to check to ensure that it had not expired. 

52.          In relation to Mr Wang’s failure to not make any attempt to contact the department, Mr Karp argued that he was unsophisticated and lacking in English skills, and was given to seeking the help of others.  It was not a matter of simple commonsense that he should have taken active steps to ensure that his status remained regular.  Such matters were culturally conditioned, and what might appear to be commonsense in Australia might not necessarily be so for someone from a different culture. 

53.          No doubt in China also people are required to fill in forms and keep their documents up to date, but quite apart from that, Mr Wang had learned early on about the need to keep renewing his visas, and promptly acted on that knowledge.  To that extent he could be seen as acculturated to Australian migration law.

54.          Next, the respondent stated that between 15 April 1998 and 16 April 2003 Mr Wang performed work in Australia while either as an unlawful non-citizen or in contravention of a condition of a bridging visa.

55.          Again, that offence was not denied and Mr Wang said at the hearing that he had started working a few weeks after his arrival in 1997.  He said, however, that he did not know if his visa permitted him to work, but did not make any enquiries in order to find out.  He did concede that he did not think it was permissible to work on an expired visa, but again it never occurred to him to make any inquiries.  In his letter of 14 June 2004 (T p306), he said that he had worked in the later stages, “because I lived with my de facto spouse who was an Australian citizen and I had to do some paid work to support her who was in poor health……But in the earlier stage of my overstay I did not live with her, there should be no excuse for my wrong doing.”

56.          The respondent contended that he had, in addition, given incomplete particulars of the work he had done.  He had admitted having being engaged in home decoration and renovation, but his wife had said that he worked in gyprocking as well as in a bakery, while at the interview on 23 April 2003 he said that he had held “many casual jobs”.  Mr Wang explained, however, that he regarded gyprocking as being in the same general description as home decoration and renovation and that he had only had two employers.  The statement about having “many casual jobs” referred to the fact that he had performed work at many different sites over the years.  That seems a reasonable explanation.  He denied working in a bakery, but in view of the other evidence of unlawful work, I do not think it necessary to resolve the conflict between his evidence and Ms Jiang’s on that point. 

57.          Finally, the respondent said that Mr Wang had not abided by the conditions attached to his subclass 456 business (short stay) visa. 

58.          It was put to Mr Wang at his interview on 17 June 2004 (T p309), that the visa was to enable him to undertake some form of business, but he did no business.  He agreed: “I didn’t do any business”.  He also conceded that he had no intention of doing any business: “I just wanted to go abroad; I didn’t think too much”.

59.          It will be apparent from the foregoing that Mr Wang was not an impressive witness.  His evidence was laced with contradictions and inconsistencies.  He frequently fell back on a claimed inability to recall important events in his life, even comparatively recent ones.  He professed complete unconcern about his migration status over long periods when it is obvious that he knew almost from the outset that he had to ensure that his visa was kept up to date.  He claimed to have placed complete trust in others to attend to his migration matters for him, when on his own evidence he had good reason not to.  He had thought that his agent in China had obtained for him a five year visa, and it was not until he had been in Australia for six months that he discovered that he had to renew it every three months.  That experience alone would have taught him, if it were necessary, to take active steps to ensure that his status was lawful, as he was legally obliged to.  Finally, his numerous assertions that he had “no idea” about matters of serious importance to him were not credible, especially in a man with considerable experience of the world and of business. 

Evidence in relation to discretionary factors

60.          The evidence described above relating to general conduct is also relevant to the first two of the discretionary factors set out in Direction No 21, community protection and community expectations.  The other evidence relevant to the discretionary factors now also needs to be considered.

61.          Mr Wang is currently living in China with his mother and his son from his first marriage, who is a Chinese citizen and now aged 12.  He has a sister, two brothers and six other siblings also living in China.  Of the six, it is not clear how many, if any, of the other six are half or step siblings.  Mr Wang, his mother and son live in a quite spacious two bedroom apartment, although with shared facilities.  When asked how he supports himself, Mr Wang said that his wife sends him money, but when pressed admitted that he received 800 RMB by way of rental income from an upstairs apartment. 

62.          Mr Wang has the primary responsibility for the care and maintenance of his son, but did not include him in the spouse visa application and intends that he should remain in China if a visa is granted.

63.          He is not currently employed.  His wife, who has spent some months living with him in China, says he is unable to find work because he is too old (although he is only 35) and because he has insufficient education.  In his statement, however, Mr Wang says that since his wife returned to Australia on 30 October 2004, “I have done no work as I have not been in mood of doing things.  I have been missing my wife every day”.

64.          Ms Jiang Chu Quin migrated to Australia with her first husband, Leonid Perederienko, and their two children in 1981.  In 1993 her first husband established his own construction company, which proved successful.  In 1996 he travelled to China to develop the business further, but did not return.  They were divorced in 2000.  Ms Jiang met Mr Wang in August 2000 and they began living together in February 2001 in Fairfield, New South Wales.  In July 2002 they purchased the house at Hinchinbrook, redecorated it and moved in shortly afterwards.  They were married while Mr Wang was in Villawood on 1 June 2003, shortly before he returned to China on 8 June.  In August 2003 she travelled to Tianjin city, China, to see him and also meet his family.  While there the couple had another wedding ceremony in Tianjin City for more than 100 guests.  They lived together in Tianjin for two months.

65.          Since returning to Australia in November 2003, she has suffered from a number of medical problems which, while not life-threatening, have affected her life and must be most unpleasant.  A consultant psychiatrist, Dr Shiu Quong Law, states in a report dated 15 March 2005 that she is distressed and dejected, and suffering from an adjustment disorder with a depressed mood, which he says is causally related to her inability to be reunited with her present husband.  “She looked genuine in telling me her plight, as far as I can ascertain”, he said. 

66.          Since 1993 Ms Jiang has been employed at Heiden Park Lodge, conducted by the United Protestant Association of New South Wales, as an aged carer.  She is well regarded by her employer and by residents.  She states that she earns $550 net per week, of which $200 per week goes to pay the mortgage on the Hinchinbrook house.

67.          Ms Jiang says that she has had a hard life, both in China and Australia, having to raise two young children on her own.  She feels that if her husband were granted a spouse visa, the rest of her life would be more secure, as he would be able to support her financially as well as providing the emotional support she needs, particularly in light of her medical problems. 

68.          Her son from her previous marriage, Alex Perederienko, is aged 25.  He was sent back to China to live with his father in Beijing in 1999 in order to rehabilitate himself from a drug problem that he had developed.  He returned to Australia in 2004, but Ms Jiang does not know why.  All she knows is that after he had boarded the flight to Australia, her husband telephoned and told her the flight number.  On his return he lived with her, but she ejected him two months ago because he had returned to drug abuse and on four occasions had sold household valuables and electronic appliances to raise money for drugs.  Alex has never met Mr Wang.  Ms Jiang is currently living with the daughter Anna Perederienko, aged 22. 

69.          Ms Jiang said that when she first met Mr Wang in 2000 she knew nothing of his immigration status, but some time in 2002, after they had begun living together, he told her that he was in Australia on a five year business visa.  Previously she had asked him what kind of visa he was on, but he had replied that he did not know anything about it, that he had been stressed at the time because his first wife had left him for another man and a friend had taken care of the application for the business visa.  She said she knew nothing else about the visa, including the period for which it was valid, but recalled that Mr Wang had intended to find a business to engage in, but was unable to do so because of his lack of English.  She said he did not “formally” tell her about his protection visa application.  When it was put to her that between 2000 and 2002 she knew he was on a business visa, she replied that she had been busy, she had limited education and did not have time to see an agent to ascertain the details.  She had no idea about the legal basis of his stay, only that he had a five year business visa.  She was quite evasive on this point.  When again pressed as to whether she knew he was illegally in Australia, she again replied that she did not know the details of his migration position.  Given that Ms Jiang is herself an immigrant, and given also that visa matters are a central topic of interest in migrant communities, I think it most probable that she was aware of, or strongly suspected, Mr Wang’s migration status from early in their relationship.  She was undoubtedly aware of it by the time they were married in June 2003.  Her evasiveness on the subject supports that conclusion.

70.          Anna Perederienko stated that she had first met Mr Wang in 2001, and had lived with his mother and Mr Wang for two years.  At first she resisted developing a relationship with him but later concluded that he was kind-hearted and that the relationship was genuine.  She said that he was “very silly”, explaining that she and Mr Wang would “gang up” on her mother to tease her, because they thought she was too solemn and serious. 

71.          Ms Perederienko said that she had no idea that Mr Wang had used false documents and made false statements in connection with his business visa application, and that until these proceedings she did not know about the circumstances in which he applied for extensions.  She knew he had been unlawful for four years and had worked unlawfully.  When it was put to her that he had not been honest with her about his migration problems, she agreed but said that he panicked, that he was desperate to stay in Australia. 

72.          She said that after Mr Wang had been detained, her mother was lonely and depressed and did not want to go out.  If a visa were refused she would be in an awkward position because she would have to choose between her (Anna) and her happiness.  Anna intended to make a regular annual practice of returning to China to spend a few weeks with her own father, and had done so in 2003 and 2004, but as she had been born in Australia there was no future for her in China.  If her mother were to move to China to be with Mr Wang she would remain in Australia.   

Application of the Law and Findings of Fact

73.          As noted above, the applicant concedes that Mr Wang has committed migration offences and may not be able to satisfy the Minister that he passes the character test, having regard to his past and present general conduct (s 501(6)(c)(ii)).  I find that he has committed the numerous migration law violations alleged by the respondent, including making false statements and providing bogus documents, and that those offences, especially cumulatively, show contempt or disregard for the law.  I find no evidence of rehabilitation, and in fact the visa applicant repeatedly attempted to mislead the tribunal in his evidence at the hearing. A number of references in his support were received into evidence.  In so far as they show that he is a conscientious worker and a reliable employee, I accept them.  But as Mr Webb pointed out, the references contain no acknowledgement of Mr Wang’s unlawful status and his numerous breaches of migration law.  It may be that the person’s giving those references were not fully apprised of the facts and circumstances.  At all events I consider his past and present general conduct, including his conduct when giving evidence, to be a better guide to character than those untested opinions.  I therefore conclude that Mr Wang does not pass the character test. 

74. The other issue for the tribunal to consider is therefore whether to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Mr Wang. In exercising the discretion, the tribunal must have 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.

75.          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.

76. 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 Act, which in turn includes “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

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

Protection of the Australian Community

78. The first factor to be considered under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on the tribunal, states in paragraph 2.6(c) that offences against the Act, including “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. The applicant’s counsel has conceded that Mr Wang’s conduct in making false and misleading statements in both his short-stay and long-stay business visa and extension applications is very serious. He submitted, however, that the visa applicant did not know the contents of these documents and this was a failing of recklessness, as opposed to blatant dishonesty. As the forms were signed or authorised by Mr Wang with the intention of being able to come to and remain in Australia, he is responsible for their contents. But I think he was also well aware that the applications were essentially fraudulent, whether or not he knew in detail about every false representation contained in them.

79.          I think Mr Wang probably was a member of an underground Christian church in China, but he was not persecuted on that ground and did not expect, or have any reason to expect, that he would be a victim of religious persecution if he were to return to China.  He applied for a protection visa using his Christian associations, essentially as a pretext for an application which, like his previous visa applications, he knew to be essentially fraudulent.  He also remained unlawfully in Australia for the periods alleged by the respondent and worked without permission as alleged, knowing that he was breaking the law by doing so.

80. Making a visa application using a false or forged document, or making a statement that is materially false or misleading, is an offence under s 234(1) of the Migration Act carrying a penalty of ten years’ imprisonment or 10,000 penalty units or both. That substantial penalty shows that a number of Mr Wang’s contraventions constitute serious crimes against the Act. Further, paragraph 2.6(c) of Direction No 21 states that presenting false of forged documents or making a false or misleading statement in connection with entry and stay in Australia is a serious crime under the Act. Unlawful work in Australia is an offence under paragraph 2.35 of the Act, punishable by a fine not exceeding $10,000. I conclude that Mr Wang’s breaches of migration law are to be considered very serious.

81.          The direction requires the tribunal to take into account the likelihood that the conduct may be repeated (including any risk of recidivism).

82.          In Beale v Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714, the tribunal stated:

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.

83.          Mr Wang’s persistent conduct in breach of the Commonwealth’s immigration law, starting with the false statements and false documents he used to enter Australia and extending to working without permission, breaching visa conditions and overstaying despite having come to the attention of immigration authorities., as well as his attempts to mislead the tribunal in his evidence at the hearing all suggest a likelihood of his re-offending within the meaning of Beale.  

84.          In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.  In this case, I conclude that refusal of a spouse visa may dissuade others from committing similar acts.  

85.          Past cases before the tribunal disclose a regular incidence of fraudulent applications and attempted fraud in China (see for example, Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065 at paragraphs 112 and 127; Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828 at paragraph 50; Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038 at paragraph 70). I therefore consider that the grant of a visa to Mr Wang would send entirely the wrong message to others who might be contemplating engaging in conduct of that kind.

Expectations of the Australian Community

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

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

84.      In my view the community expects that the migration program will be administered with integrity and humanity.  In a situation where the number of visas available to prospective immigrants is necessarily limited, that implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction, and in this case there are not.  I believe the community would consider that Mr Wang’s record of immigration law violations would weigh in favour of refusing his spouse visa.

The Best Interests of the Child

87.          The third primary consideration is the best interests of the child.  I note 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”.

88.          Ms Jiang has two children whose interests are not relevant to this matter as they are both over the age of 18 years.  Mr Wang has a son, Wang Bao Kai, who is aged 12, from his previous marriage, whose interests must be considered.  Mr Wang’s spouse visa application did not include his son.  Wang Bao Kai has lived all his life in China and has never been to Australia.  There is very little evidence about his situation, such as whether he has had any contact with Ms Jiang.  Since Mr Wang returned to China, his son has been living with him.  In his oral evidence Mr Wang explained that his son lives with him and he has the principal responsibility for Bao Kai’s care.  If the visa is refused, his son could continue to live with him, which would be in his best interests. 

89.          Mr Karp submitted that as it was not specifically put to Mr Wang in cross-examination that Bao Kai’s best interests would be served in that way, the tribunal could not properly reach that conclusion.  He referred to Commissioner for AustralianCapital Territory Revenue v AlphaonePty Limited (1994) 49 FCR 576, 591 in which the full court of the Federal Court stated that a subject of a decision “is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious or natural evaluation of that material” (p 591). In that case the full court held that the conclusion in issue was an obvious and natural evaluation of the evidence, and I think the same is true in the present case. Mr Wang evidently turned his mind to Bao Kai’s welfare when he decided not to include him in his spouse visa application. Bao Kai is his own son and matters related to his welfare in China are peculiarly within Mr Wang’s knowledge. He chose to adduce no evidence on that subject at the hearing and the tribunal must therefore reach a conclusion about the direction in this respect on the basis of such evidence as it has available to it.

Other Considerations

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

91.          Mr Wang’s mother and nine siblings all reside in China and would not be adversely affected if the visa is refused.  As was stated above, Mr Wang’s son is currently residing with him and it would be in his best interests if he continued to do so. 

92.          Ms Jiang and Mr Wang were married at Villawood on 1 June 2003.  He is aged 35, she is 49.  Ms Jiang is an Australian citizen and the respondent did not argue that the marriage was a sham.  The parties have now lived apart for almost as long as they have lived together, but Ms Jiang would greatly prefer to be reunited with her husband and has spent several months living with him in China since his removal.  For the reasons given above, I think that on the preponderance of probabilities she was aware of his irregular migration status from early in the relationship, and certainly by the time she married him on 1 June 2003.

93.          Ms Jiang referred to her health problems as a reason for seeking to have Mr Wang join her in Australia.  She suffers from haemorrhoids for which she is currently on the waiting list for an operation and has anxiety and depression apparently caused by the separation from her husband and the attendant uncertainty.  She was previously diagnosed with a tumour in the uterus, but said that as menstruation has now ceased, her doctor considers that she may no longer need surgery, contrarily to what had previously been thought.  Her modest income is enough to cover her mortgage payments and other basic commitments, and she is no longer supporting her son Alex, having told him to leave two months ago because of his relapse into drug use and the thieving associated with it.  She said that at 25 he should be able to support himself.  Ms Jiang’s daughter Anna developed a bond with her step-father while he was living with her mother in 2002-2003.  She has visited him in China and as she has formed the intention of spending some weeks with her own father in China each year, she could renew her contacts with him at the same time if he were not granted a visa. 

94.          In the final analysis it is clear that Ms Jiang will suffer some emotional hardship if Mr Wang does not receive a visa to come to Australia.  She has spent some months with him in China since the marriage and could no doubt do so again, but there would inevitably be costs associated with that.

95.          Ms Jiang’s position does constitute one of the “other considerations” and tends to weigh in favour of exercising the discretion in Mr Wang’s favour.  Nevertheless, such considerations ordinarily cannot outweigh the primary considerations of community protection and expectations and, to the extent that it is ascertainable, the best interests of Mr Wang’s son.  I therefore conclude that the discretion should not be exercised in favour of granting a visa in this case.

96.          The decision under review should be affirmed.

I certify that the 96 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  18 and 19 May 2005
Date of Decision  12 July 2005
Counsel for the Applicant         Mr L Karp
Solicitor for the Applicant          Ren Zhou Lawyers
Solicitor for the Respondent     Mr T Webb, Clayton Utz