Jollye and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1242
•16 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1242
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/739
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER JOLLYE Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms G Ettinger – Senior Member Date16 December 2005
PlaceSydney
Decision The decision under review is affirmed.
Ms G Ettinger
Senior Member
CATCHWORDS
IMMIGRATION - application for spouse (provisional)(subclass 309) visa – visa applicant arrived in Australia on business (short stay)(subclass 456) visa - applicant not a genuine visitor but intended to remain in Australia – visa refused on the basis that visa applicant is not of good character - visa applicant married review applicant in July 2004, left Australia in August 2004 – false and misleading information given in connection with protection visa application and Refugee Review Tribunal applications lodged via migration agent - decision affirmed
Migration Act 1958 s 501
Ministerial Direction 21
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Munoz and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 676
Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
REASONS FOR DECISION
16 December 2005 Ms G Ettinger – Senior Member BACKGROUND
1. The Applicant, Mr Christopher Jollye is of UK background, and has been an Australian citizen since approximately 1983. He told me that he has been here on and off for 30 years, and considers Australia his home. He has been married and divorced, and has three sons aged 18, 16 and 14 from his first marriage. He met the visa applicant, Ms Zheng Ming Yu, in approximately January 2004. She had come to Australia from China on a Business (Short Stay) (Subclass 456) visa on 22 May 2001. They fell in love, and married in July 2004, shortly after Ms Zheng’s divorce was finalised. The Respondent Department accepted that the relationship between Mr Jollye and Ms Zheng was “genuine and continuing”.
2. Ms Zheng has one daughter aged 11, who did not accompany her to Australia, and who, although she originally was part of the spouse visa application, was apparently withdrawn from the application because of problems of consent with Ms Zheng’s ex-husband.
3. Ms Zheng’s evidence was that she paid a large sum of money to an agent in China to obtain a visa and a passport. In her written evidence, she stated that when she realised the cost, she wanted to withdraw, but was unable to. Shortly after her arrival in Australia in May 2001, Ms Zheng engaged the services of a migration agent, Priscilla Yu, and a month after her arrival, a Protection Visa application with accompanying documentation had been lodged. Ms Zheng now claims that the information provided to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”), supporting the contention that she had a fear of persecution if she returned to China, was false. The application was refused, and an application was made on her behalf to the Refugee Review Tribunal with what Ms Zheng now admits was further false information. The Refugee Review Tribunal also refused her application, finding that “the claims as made by the applicant, and submitted through her migration agent, Ms Priscilla Yu, are fraudulent. It is apparent to me that the claims have been copied from, and are identical to, the claims made in the prior file…. This is a case where clearly the claims have been copied, and are identical in words and circumstances as another person’s . …”
4. Ms Zheng told me that her intentions in coming to Australia were to earn money to support her family in China, to support her sick brother, and to repay debts incurred with regard to obtaining the Australian visa. She gave evidence by telephone link from China with the assistance of a very competent interpreter in the Mandarin language who was with us in the hearing room in Sydney.
5. I heard from Mr Jollye that Ms Zheng speaks some English. However, every word spoken to and by her was translated for her, and certain questions were, at her request, repeated. I am satisfied that Ms Zheng was able to understand all the questions, and that she had full opportunity of answering them. I found that she hesitated in some of the answers she gave to questions, and that for example, when I questioned her about her appearance at the Refugee Review Tribunal, she was at first not willing to speak about it. After further questioning, Ms Zheng told me that whatever she had said there were untruths based on documentation prepared for her by the migration agent.
6. I draw no adverse inferences regarding her hesitation in answering some questions.
7. I noted that Ms Zheng departed Australia in August 2004 some days before the expiration of her bridging visa.
8. Although there is evidence in the written materials before me that Ms Zheng expressed regret that she had told lies to the Australian authorities, she did not at any time during the hearing express any regret for having done so. A day after the hearing, I received a letter by facsimile from Mr Jollye pointing out that Ms Zheng had made an apology for telling untruths which could be found on page 218 of the T-documents, and assuring the Tribunal that she “is a very honest person and is remorseful …” . I asked the Registrar to reply to Mr Jollye pointing out that the hearing was over, the matter had been reserved, and that I could not therefore receive further evidence or enter into correspondence. A copy of the correspondence was also forwarded to the Respondent.
9. I had to consider the decision of the Minister’s delegate refusing Ms Zheng’s Spouse (Provisional) (Subclass 309) visa, and apply the legislation and case law to make the correct or preferable decision
ISSUES BEFORE THE TRIBUNAL
10. The issues I have to decide are:
· Whether Ms Zheng passes the character test because she is a person of good character, having regard to her past and present general conduct (section 501(6)(c)(ii) of the Act; if not
· Whether I should exercise the discretion in section 501 of the Migration Act 1958 (”the Act”) to permit the issue to Ms Zheng of a Spouse (Provisional) (Subclass 309) visa.
RELEVANT LEGISLATION
11. Section 501 provides as follows:
"501(1)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.
(2)The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
….
501 (6)For the purposes of this section, a person does not pass the character test if:
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…
Otherwise the person passes the character test.”
12. If the person fails the character test pursuant to section 501(2) of the Act, then by virtue of section 499(2A), in considering this issue, I must take into account, as a guide to making the decision, Ministerial Direction No. 21 (the “Direction”), being a Direction made by the Minister for Immigration and Multicultural and Indigenous Affairs pursuant to section 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under section 501.
WHETHER MS ZHENG PASSES THE CHARACTER TEST BECAUSE SHE IS A PERSON OF GOOD CHARACTER, HAVING REGARD TO HER PAST AND PRESENT GENERAL CONDUCT PURSUANT TO SECTION 501(6)(C)(II) OF THE ACT
13. The facts regarding Ms Zheng’s entry and exit into Australia are not in dispute. I was satisfied that she first entered Australia on 22 May 2001 on a Business (Short Stay) (Subclass 456) visa from China, the country of her birth.
14. At this hearing, Ms Zheng gave evidence by telephone link from China with the assistance in Sydney of Ms Zhang, a very competent interpreter in the Mandarin language, acknowledging that she had planned from the time of her entry into Australia to spend some time, (she would or could not disclose a precise time), working in Australia, in order to earn money to support her family, support her sick brother, and repay debts incurred in the obtaining of her visa and passport.
15. Ms Zheng engaged the services of Priscilla Yu, a migration agent, shortly after her arrival in Australia, and a protection visa application was lodged on her behalf on 2 June 2001. She claims now that due to her lack of knowledge of English, she was unable to read the supporting documents, and that they contained untruths. I noted that in those documents, Ms Zheng made claims that she feared persecution as a result of political activities and involvement with the Fuqing Workers Protection Alliance. That application was refused and Ms Zheng appealed the decision to the Refugee Review Tribunal.
16. I noted that the Refugee Review Tribunal refused Ms Zheng’s application, finding that “the claims as made by the applicant, and submitted through her migration agent, Ms Priscilla Yu, are fraudulent. It is apparent to me that the claims have been copied from, and are identical to, the claims made in the prior file…. This is a case where clearly the claims have been copied, and are identical in words and circumstances as another person’s . …”
17. I noted further that Ms Zheng also claimed in the protection visa application to have worked in a “joint-venture toy factory”. In completing documentation for the spouse visa application, Form 80, Ms Zheng stated (T9/160), that from July 1990 to January 1994 she had assisted her family and worked in a factory, and that from May 1998 to April 2001 she had been proprietor of Li Li Restaurant. The evidence before me was that the toy factory work consisted of piece work Ms Zheng did at home, and the restaurant was a mobile vendor arrangement.
18. I was satisfied that Ms Zheng:
· Was granted the business visa to enter Australia on the basis of claiming to be a manager for Fujian Jinjie Motor Service Co Ltd and attending the 25th Australian Automotive Trade Fair, all of which were untruths;
· With the assistance of a migration agent, supplied untruths regarding her fear of persecution in China in her application for a protection visa;
· With the assistance of a migration agent, supplied untruths to the Refugee Review Tribunal in connection with her application for refugee status;
· Misrepresented her work history in the application for a spouse visa.
19. The Minister, and this Tribunal standing in her shoes, may, pursuant to section 501(1) of the Act, refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
20. For the purposes of section 501(6), there are various indicia which may be considered in regard to whether a person passes the character test. The Minister, and accordingly, the Tribunal will have regard to the person's past and present criminal conduct. That does not apply in this case, because there is no implication that Ms Zheng engaged in any criminal conduct. The Tribunal does however have to take into account her past and present general conduct in order to assess whether she passes the character test. If she does not, there is still a discretion to allow her the grant of the requested visa after taking into account primary and other considerations.
21. In applying the legislation, the Tribunal must also take into account the Ministerial Direction 21. Paragraph 1.9 of the Direction states relevantly:
"In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii) of the Act, decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
...
(b)whether the non-citizen has, in connection with any application for the grant of any kind of Government benefit, provided a bogus document or made a false or misleading statement".
22. I am mindful that there are many decided cases in which good character has been considered. I have taken into account the following in particular, noting that in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon stated that:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
….
Good character cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning. The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation."
23. In Irvingv Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J stated:
"Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion ...
...
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry."
24. In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, the Full Court said in relation to good character in section 501 of the Act :
"The concept of good character is section 501 is not concerned with whether an applicant meets the highest standards of integrity but with a less exacting standard than that. It is concerned with whether the applicant's character in the sense of [his] enduring moral qualities is so deficient as to show it is for the public good to [cancel [his] visa]."
25. There must be an honesty and integrity amongst visa applicants on which the authorities can rely so that they are treated fairly and that their claims are assessed by the same standards. Unfortunately Ms Zheng has, as detailed above, knowingly breached the standards, and the requirements of the legislation. I am therefore satisfied from the evidence and the case law to conclude that Ms Zheng does not pass the character test because she is not a person of good character, having regard to her past and present general conduct pursuant to section 501(6)(c)(ii) of the Act. My next task is then to consider the discretion to set aside the decision of the Respondent.
WHETHER I SHOULD EXERCISE THE DISCRETION IN SECTION 501 OF THE ACT IN REGARD TO MR JOLLYE’S APPLICATION FOR A SPOUSE (PROVISIONAL) (SUBCLASS 309) VISA FOR MS ZHENG
26. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction).
27. The three primary considerations in Direction No. 21 follow:
Clause 2.3 provides follows:-
“2.3In 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.”
28. Clause 2.3 should be considered in relation to clause 2.5 which reads as follows:
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
protection of the australian community
seriousness and nature of the conduct
29. In considering the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction), paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. In support of his case, Mr Jollye emphasised that Ms Zheng has had no convictions in either China or Australia. It is true that I have no record of any convictions
30. Mr Jollye also drew my attention to the recently decided case of Munoz and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 676 in which Deputy President Purvis set aside the decision of the Respondent not to grant a Spouse (Provisional) (Subclass 309) visa. He submitted that similar facts were raised in that case, and that I should have regard to it when making my decision. Ms Quinn who represented the Respondent at the hearing, relied on paragraph 26 of the decision, submitting that the Tribunal in that case had not found the visa applicant had a guilty state of mind, whereas Ms Zheng had knowingly lied. I was mindful that Deputy President Purvis had found that the spouse applicant was “well aware of the steps being taken by the agent and that they were being so taken in order to prolong his stay in Australia.” The Deputy President found however that he was satisfied that the spouse visa applicant in that case “was not aware however, that any of the procedure put in place was improper.” The Deputy President concluded that he was satisfied the spouse visa applicant in that case was not one who was not of good character. That is quite a different situation from the present where I have found that, pursuant to the legislation, Ms Zheng is not of good character.
31. I was mindful of what Deputy President McMahon pointed out regarding the telling of truth in immigration matters in Lachmaiya (supra):
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
32. Paragraph 2.6(c) of the Direction states that it is the Government's view that, "presenting false or forged documents or making a false or misleading statement in connection with entry and stay in Australia" is very serious. Given her concession and the evidence before the Tribunal, I can be satisfied that Ms Zheng presented false information in connection with her application for a protection visa, false information to the Refugee Review Tribunal and false information regarding her employment history in connection with her spouse visa application in order to obtain residence in Australia.
33. The evidence regarding how Ms Zheng obtained her short stay business visa to come to Australia in 2001 appears to have changed several times, and contained untruths.
· Ms Zheng told me that she wanted to come to Australia to earn money to pay for the visa and passport she had obtained from an agent in China (as well as money to support her family). The Departmental documentation also refers to her payment for the visa as told by Ms Zheng when she was interviewed by the Australian Consulate General in Shanghai on 12 January 2005.
· The Departmental documentation at page 14 of the T-documents, which was before the Tribunal as Exhibit R1, states that Ms Zheng alleged in her application for the business visa, that she was one of 13 people in a delegation attending the 25th Australian Automotive Trade Fair, and that she was a manager for Fujian Motor Service Co Ltd.
· It seems that Ms Zheng told the Refugee Review Tribunal that she had organised the visa herself, and when pressed further, claimed the visa was organised by a friend named Min Ting.
34. I was concerned about the fabricated series of events as recounted in connection with the application for the initial entry visa, the protection visa, and for the Refugee Review Tribunal. Ms Zheng admitted both stories were false, submitting that they had been written by her Australian migration agent, and that she had been instructed what to say. She said that she had not been able to read what was written because it was in English. She did agree however to go along with, and give what she now admits she knew were false statements.
35. In connection with the protection visa application, Ms Zheng stated that she feared persecution if she returned to China because of her political activities. She claimed she had involved herself with Fuqing Workers Protection Alliance and was on the black list and wanted by the PSB. She also stated that she had worked with the Mingda Joint-Venture Toy Factory from 1994 – 2000.
36. Ms Zheng claimed similarly in connection with the Refugee Review Tribunal application, although she has since admitted that the information was false, claiming by way of mitigation that it was prepared for her by her migration agent. The Refugee Review Tribunal found that she was not a credible witness, and that the information was fabricated and copied from that which another applicant had given.
37. Mr Jollye submitted that Ms Zheng could not read English and that she was accordingly disadvantaged in relation to the documents presented for the protection visa and to the Refugee Review Tribunal. However, I noted that in her response dated 13 April 2005, Ms Zheng, admitting that the documents were false, stated that she enclosed “two documents in Chinese and partial translations.” (my emphasis). Ms Zheng also claimed to have been intimidated by her migration agent. although the evidence she gave about that did not satisfy me.
38. Ms Quinn submitted that there were also recent inconsistencies in the information Ms Zheng has given Australian immigration authorities. She drew my attention in particular to the personal particulars Form 80 which Ms Zheng completed in connection with the spouse visa application on 6 August 2004 (T9/160). Ms Zheng stated there that she was at home looking after her daughter between February 1994 and May 1998. There was no mention of any toy factory. When asked in her oral evidence about this, Ms Zheng replied that she took home piece work from a toy factory, and was only required to go into the factory from time to time presumably to collect and deliver her work.
39. I noted also that Ms Zheng completed the form stating that she was the owner of “Li Li” restaurant in Fuqing City. In oral evidence Ms Zheng told me that the so-called restaurant was a mobile food vendor arrangement.
40. I considered Ms Zheng’s untruthfulness to demonstrate a disregard for Australia’s immigration laws, conduct which I find to be very serious. I give serious weight to this aspect of the issues I have to consider overall because it has the potential of undermining Australia’s migration program, and because it has occurred most recently in connection with the spouse visa application.
likelihood of repetition of the conduct and risk of recidivism
41. The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct is highly relevant to assessing the likelihood of an offence and risk of recidivism.
42. In considering the risk of Ms Zheng re-offending if she is granted entry to Australia, I have noted what the Tribunal stated in Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, that:
“In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were 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.”
43. In Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, Deputy President Purvis stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that 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. He person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
44. Ms Zheng’s conduct demonstrates the giving of false or misleading information over a period of time in a variety of circumstances. She has misled the authorities by giving false information several times, as recently as when she gave information in connection with the spouse visa application. Ms Zheng did not express any remorse about what she had done at the hearing, although she readily admitted having given false information in connection with the protection visa and the Refugee Review Tribunal. However when she wrote to the Department on 13 April 2005, at the instigation of her solicitor, she did express shame that she might have been thought to be a dishonest person, and apologised for having told untruths.
45. However, having considered all the circumstances, I am not satisfied that Ms Zheng is a person who would not lapse into that type of behaviour if she thought there was personal gain involved.
general deterrence
46. The third of the three factors relevant to an assessment of the level of risk of the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). In the present matter, the affirmation of the decision not to grant the visa to Ms Zheng presumably would become known to friends and acquaintances, and that may provide some deterrence to other persons. Although in this matter the general deterrent effect is not significant, and there is no suggestion that the applicant was involved in a criminal scheme, I consider that on balance this consideration points in favour of affirming the Respondent’s decision.
47. To grant the visa to the visa applicant would be seen to be rewarding her for her conduct, and could confirm to others that such conduct is excusable, and will ultimately lead to the grant of a visa.
expectations of the australian community
48. There is no doubt a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. I respectfully agree with Deputy President McMahon when he said in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 that there would be a general expectation in the community that the Act would be administered fairly and humanely. This second primary consideration also appears from its terms to require the decision-maker to formulate the expectations of the Australian community not only objectively, but also with reference to the particular person involved in the relevant determination.
49. I have taken into account the motivation Ms Zheng spoke to me about in regard to wanting to come to Australia. She said that she wanted to earn money to pay for the visa and passport she obtained through an agent in China, and to earn money to support her family, and her sick brother. However she told the Australian authorities a quite different version of events with regard to the initial business visa.
50. Persons who are permitted to remain in Australia are expected to be truthful and honest. Ms Zheng gave false information in regard to her initial visa application, her protection visa, her Refugee Review Tribunal application and finally in regard to personal particulars for the spouse visa. I am satisfied that the Australian community would not be sympathetic to Ms Zheng.
best interests of a child or children
51. The best interests of any children under the age of 18 are very serious and important considerations. Ms Zheng has an 11 year old daughter who was initially part of the spouse visa application, but was withdrawn due, we were told, to difficulties with obtaining the consent of her ex-husband. I believe that the best interests of the child would be served by Ms Zheng remaining near or with her daughter in China.
52. Mr Jollye has three sons aged 18, 16 and 14. None live with him. He told me that the 16 year old has lived with him in the past, but recently returned to live with his mother, Mr Jollye’s ex-wife. The 14 year old is at boarding school. We are here concerned primarily with the welfare of children under 18. Both of Mr Jollye’s children under 18 appear to be well cared for outside his home. I accepted his evidence that he feels he should be here to guide them, and understandably, that he wants his wife, Ms Zheng, with him. However, he is free to travel, and told me he has visited her three times since she left in August 2004. I accept that they miss each other, and that he would rather have her here.
53. I have considered the welfare of the children, and am satisfied that Ms Zheng’s daughter would be better off with her mother being in China. The evidence I had before me indicates Mr Jollye’s children do not live with him, but when he is in Australia he is near his children, and able to give them any advice or guidance he sees fit. I have no evidence before me to indicate that they would not be looked after well if he were to travel to China or elsewhere.
other considerations
54. There are other considerations included in paragraph 2.17 of Direction No. 21 relevant to the present matter. Paragraph 2.17 reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view 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 …”
55. This preface is then followed by a list of some 11 examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
56. I have therefore taken into account the situation in which Ms Zheng and Mr Jollye find themselves. They have lived apart since August 2004 when Ms Zheng returned to China, although Mr Jollye said that he has visited her in China three times since then. Mr Jollye expressed his disappointment at not being able to be with his wife, and tendered a letter dated 24 November 2005 from his family doctor which is Exhibit A1 before the Tribunal. In it Dr Robert Khoo states that Mr Jollye suffers from depression and hypertension, “exacerbated by the fact that his wife is currently not allowed by the Immigration authority to come and live in Australia.” Mr Jollye, who is a self employed book keeper has also said that his work has suffered because of the separation from his wife. Clearly the couple miss each other, and want to be together.
57. However Ms Zheng’s only child aged 11, is in China. Mr Jollye told me that his children are aged 18, 16 and 14. The 18 year old is considered for these purposes to be relatively independent, the 16 year old is at boarding school, and the 14 year old lives with his mother. Mr Jollye would be free to travel to China or make arrangements to move there if he can achieve that.
58. I was satisfied that there are no other relevant considerations which arise out of paragraph 2.17(a).
character evidence
59. Mr Jollye tendered several letters and character witness statements which had both the Chinese version and English translations attached. Mr Jollye was unable to locate the originals at the hearing, although he indicated that he had them, and I was satisfied with the tender of the photocopies.
60. Exhibit A2 was a letter of the “Fuzhou Wuxi Gynecology Hospital of Chinese Medicine” dated 23 August 2004 regarding Ms Zheng’s brother. Mr Jollye tendered it to indicate how ill her brother is, and to show how Ms Zheng tended him. Exhibit A5 was a statement by Zheng Yong, Ms Zheng’s younger brother corroborating the evidence that she had looked after him.
61. Exhibit A3 was a statement Ms Zheng said was prepared for her by her migration agent in Australia with false information which she gave to the Refugee Review Tribunal in 2003 in connection with her application for refugee status.
62. Exhibit A4 was a statement with false information which Ms Zheng said was prepared for her by her migration agent in Australia in connection with her application for a protection visa.
63. Exhibit A6 was a statement of Chengzhi Zhang, an Australian resident, dated 25 October 2005, in which she gives a reference for Ms Zheng, describing her as a noble and kindhearted person.
64. Exhibit A7 was a short note of Chen Meiyue dated 21 October 2005, describing Ms Zheng as a generous and accommodating person.
65. Exhibit A8 was a Statutory Declaration of Qin Qi Wang, (described by Mr Jollye as a relative of Ms Zheng), dated 9 November 2005. In it he referred to the false information Ms Zheng had presented to the Australian authorities, and stating that Ms Zheng was “ashamed of past happenings and would in fact make a very good Australian Citizen …”.
66. Exhibit A9 was an Affidavit of Bernd Brutsche, Ms Zheng’s brother-in-law, dated 8 November 2005. In it he stated that he met Ms Zheng when she visited him and his wife in Perth from March to July 2004, and that he had found her to be “good, kind honest, caring, very helpful and reliable person … “
67. Exhibit A10 was an Affidavit of Ming Yun Zheng Brutsche, Ms Zheng’s sister dated 8 November 2005 supporting Ms Zheng being permitted to remain in Australia.
68. As I said during the hearing, I could not give much weight to any of the character references listed above as none of the persons attesting to Ms Zheng’s character was called to give evidence; further only three gave sworn statements. Only one person referred to immigration irregularities, although it is possible that notwithstanding no mention of them, Ms Zheng’s sister also knew of them. I found the character references of little assistance in making the decision.
CONCLUSION
69. I have taken into account all of the evidence before me, and considered the legislation, the Direction and the case law. After having had due regard to the importance placed by the Government on the three primary considerations referred to above, but also having adopted a balancing process which takes into account all relevant considerations, as required by paragraph 2.2 of the Direction, I have decided that it is appropriate in the present matter that the discretion under s 501(2) of the Act should be not be exercised in the applicant’s favour, and accordingly the visa should not be granted. The decision under review is accordingly affirmed.
DECISION
70. The decision under review is affirmed.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger
Signed:
AssociateDate/s of Hearing 29 November 2005
Date of Decision 16 December 2005
The Applicant Self Represented
Solicitor for the Respondent Ms T Quinn, Phillips Fox
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