Ke and Minister for Immigration and Multicultural Affairs
[2001] AATA 793
•18 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 793
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/932
GENERAL ADMINISTRATIVE DIVISION )
Re Hong Ke
Applicant
And Minister for Immigration & Multicultural Affairs
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date18 September 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Ms Jin be granted a spouse visa under s 501(1) of the Migration Act 1958.
..............................................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – Spouse visa – sponsor - character test – past and present general conduct - protection of the Australian community- expectations of the Australian community – best interests of the child – level of risk to the community- seriousness and nature of the conduct
Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(ii),),
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 17 – Visa Refusal and Cancellation under s 501
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
Mr R P Handley
This is an application by Hong Ke ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 19 June 2001 to refuse the grant of a Sub-class 309 Spouse (Provisional) Visa to the Applicant's spouse, Jin Ai Zhi ("the Visa Applicant").
At the hearing, the Applicant was represented by David Mills, Solicitor of Stuart & Mills, Solicitors. The Respondent was represented by Nathan Cureton, Solicitor of Blake Dawson Waldron, Solicitors.
The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 (the "G documents") together with the documents tendered by the parties. Oral evidence was given by the Applicant and the Visa Applicant.
BACKGROUND
The Visa Applicant, Ms Jin, was born in China on 22 July 1958 and is aged 43. She was married in China to Ma Yu Lin on 30 August 1983 and, on 20 January 1985, her daughter, Ma Jan Jan was born.
On 31 May 1997, Ms Jin travelled to Australia on a single entry business visa (sub-class 456) permit that allowed her to stay for one month. On 3 July 1997, Ms Jin lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") and was granted a bridging visa. On 28 April 1998, Ms Jin's application for a protection visa was refused by a delegate of the Respondent and, on 13 May 1998, Ms Jin applied for a review of this decision by the Refugee Review Tribunal ("the RRT"). On 4 June 1998, Ms Jin was granted a further bridging visa. On 5 February 1999, the RRT affirmed the delegate's decision to refuse Ms Jin a protection visa.
The Applicant, Hong Ke, was born in China on 14 November 1962 and is aged 38. He first arrived in Australia on 1 September 1990, on a student visa. On 12 May 1995, Mr Ke was granted permanent residency, and on24 March 1998, he became an Australian citizen. Since 28 June 1997 he has worked as a manager at Coles Supermarket at Caringbah. He and Ms Jin were introduced by a mutual friend at a Restaurant in Surry Hills in July 1997. Mr Ke said they developed a passion for each other after about a month – she is the first love of his life. At that time, Ms Jin was living in the West of Sydney in a shared unit with others. Mr Ke did not recall meeting the people with whom she shared. On 9 November 1997, Ms Jin was divorced from her husband in China, and, on 17 February 1998, she and Mr Ke were married in Sydney.
On 24 June 1998, Ms Jin flew to Vietnam where, on 26 June 1998, she lodged an application for a Sub-class 309 Spouse (Provisional) Visa. On 1 July 1998, Ms Jin re-entered Australia and has not left since. Mr Ke's application to sponsor his wife was lodged in Sydney on 18 June 1998. His sponsorship included Ms Jin's daughter, Ma Jan Jan, who currently lives with Ms Jin's parents in China and is aged 16 years.
On 3 June 1999, Ms Jin and Mr Ke were interviewed at the Department's Rockdale office in relation to Ms Jin's visa application.
After the RRT affirmed the decision to refuse Ms Jin a protection visa, she applied for ministerial intervention. Subsequently, she also joined a class action in the Federal Court. Neither the request for ministerial intervention nor the class action have yet been resolved.
On 19 June 2001, a delegate of the Respondent refused Ms Jin's application for a spouse visa under s 501 of the Migration Act 1958 ("the Act"). Pursuant to section 501(6)(c)(ii), the delegate found that Ms Jin did not pass the "character test" due to her past and present general conduct. Having found that Ms Jin did not pass the character test, the delegate then considered whether, nevertheless, the discretion to grant her a visa should be exercised, and concluded that it should not. The Applicant, Mr Ke, was notified of this decision on 26 June 2001, and, on 3 July 2001, lodged an application for a review of the decision by this Tribunal.
RELEVANT LAW AND POLICY
11. 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 are met. The relevant ground in the current matter is paragraph (c) of this subsection, as follows:
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;...
12. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 309 visa. Clause 309.225 requires that, at the time of the decision the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides that the Minister must have decided that there is no evidence on anything that might justify refusal of a visa under s 501 of the Act.
13. 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, which in accordance with s 499(2A), the person or body must comply with. This includes the Tribunal: Rokobatini v MIMA (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower either the Minister to give directions that would be inconsistent with this Act or the regulations".
14. 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.
15. The issue for the Tribunal to determine in this case is, therefore, whether Ms Jin is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, she should be granted a visa.
EVIDENCE
Hong Ke
16. Mr Ke was referred to his statutory declaration made on 22 June 2001 (Supplementary G Documents, Volume 1 page 30) and a witness statement dated 7 September 2001 (A1) which he said were a true record of their contents.
17. Mr Ke said that after he got to know Ms Jin, she told him about her past in China. However, in his view, what is significant is their future together in Australia. He said they first met in July 1997 at a Restaurant in Surry Hills when they were introduced by a mutual friend. They started going out together and fell in love and, on 1 January 1998, he proposed marriage to her. Mr Ke said that in their culture, love is priceless and conditionless. When they met he did not know of Ms Jin's immigration status.
18. With regard to the interview with a departmental officer at the Department's Rockdale office in June 1999, Mr Ke said that he had told the officer that his wife had helped a friend (occasionally at weekends) in a Chinese Restaurant – the Northern China Dumpling Restaurant. Mr Ke said he has not met this friend and is not aware of how strong their friendship is or whether they are his still friends. He said that he told the officer that this was not a job, but he did tell the officer what kind of assistance Ms Jin was offering her friend. He said that in China, the casual helping of a friend is not the same thing as casual work in Australia.
19. Mr Ke said that he was not concerned with whether or not his wife was working. He just wanted her to be with him in Australia. When Ms Jin was detained by departmental officers in November 2000 and taken to a Detention Centre, she phoned him from the Centre, but it was only later that he asked her what had happened. He asked her why she had been working. She told him she did not want to be a burden on him financially and did not want him to have to bear her expenses. In particular, Ms Jin felt it was her responsibility to look after her child and she told him that she had worked so that she could support her daughter without being a burden on him. Prior to her being detained, she had told him that she was helping someone as a domestic worker. After she was released from detention, he was mad with her, and then she told him the truth which was that she had been working as a masseur. However, she did not tell him where she had been detained by the departmental officers. Mr Ke said Ms Jin is not a very outgoing person and there are quite a lot of things she does not tell him.
20. Mr Ke was asked about Larry Ho (Supplementary G documents, Volume 1 page 3). Mr Ke said that Mr Ho is a friend of his wife's and that they re occasionally been to his house for dinner. Mr Ke thinks that Mr Ho is in the Restaurant business in Newcastle. Mr Ke said because he loves his wife, he respects his wife's friends. She told him that Mr Ho was her friend and was a kind person. On one occasion, Mr Ho had asked her to help him in his business. Mr Ke thought that this was probably in 1998 and that this was the last time he saw Mr Ho. Mr Ke is not aware whether Mr Ho paid his wife for any work that she did. He said that if a man and a woman love each other, they do not discuss money matters, and, in Chinese culture, if a man and a woman go out together, the man always pays.
21. Mr Ke said he used a migration agent, Mr Bock, to assist in making Ms Jin's spouse application. Atlhough Mr Ke filled out the forms, he asked Mr Bock for help where he did not understand the questions. Mr Bock lodged Mr Ke's sponsor forms with the Department.
22. Mr Ke said that in China, after he graduated from university, he worked for a government department and then moved to Hong Kong where he worked for four and a half years before coming to Australia on 1 September 1990. Mr Ke said that his parents are still in China as is his sister who is married but has no children. Mr Ke said he has been to China to meet Ms Jin's parents and her daughter who is living at her parent's home.
23. Mr Ke said that his wife had showed him the letters from the Department with regard to her refugee claim after they started living together as a family. Sometimes, she needs his assistance in reading letters. Mr Ke said he does not know how the refugee application process works, but is aware that the process is a long one. He is not aware of what visa Ms Jin had when she first travelled to Australia.
24. Mr Ke said that if his wife is unsuccessful in obtaining a visa, it is impossible for him to move to China. In his statement (A1), he said that he has now made his life in Australia, has worked hard and has been in his present job for five years. If he were to return to China, he would have great difficulty in obtaining work and would not be able to support his wife and her child. If she and Ms Jin are separated, he will have to remain in Australia, so that he can support her from here and he will keep trying to have her join him here.
Jin Ai Zhi
25. Ms Jin said that prior to leaving China, she had worked as a driver in a park doing maintenance work. She was not working as a manager. A friend helped her fill out her application form for a visa to travel to Australia and she gave her friend money for the processing of her application. When her friend filled out the application form for her, he did not ask her what her job was. The friend took her application and made all the necessary arrangements and Ms Jin's only role was to collect her visa from the offices of a company, presumably those of a migration agent. Ms Jin said she was not aware of the nature of the visa she was applying for. Her only interest was in getting to Australia where she intended to apply for asylum as a refugee.
26. Ms Jin arrived in Australia on 31 May 1997. After arriving in Australia, she lodged an application for a protection visa and was granted a bridging visa on 3 July 1997. She remembered signing the papers in support of her application and of her going to a hearing at the RRT where she made a statement to the Tribunal. Ms Jin said that the statements she made were true, and she genuinely believed herself to be a refugee. The reasons for the decision given by the RRT on 5 February 1999, contain a description of how Ms Jin claims to have been discriminated against in China.
27. The RRT accepted:
That during the Cultural Revolution the applicant, like many thousands of Chinese nationals experienced investigation and mistreatment at the hands of the Red Guards, as well as discrimination including the denial of further education and medical treatment owing to her family background. However, I find that after the policies of the Cultural Revolution were formally repudiated in 1979 she did not continue to suffer ongoing persecution owing to her family background.
28. Ms Jin told the RRT that, even after the Cultural Revolution had formally ended, she continued to experience disadvantages owing to her racial background, including access to education and medical treatment for her child. The RRT found that the disadvantages claimed did not, however, amount to persecution. Ms Jin also claimed to have suffered discrimination at work and to have been hit by a former Red Guard riding his bicycle. The RRT stated:
In my view whilst the difficulties which the applicant experienced at work may have been unjust or unfair they cannot be seen as some serious punishment or penalty or some significant detriment or disadvantage. Similarly the incident concerning the bike rider, even accepting for present purposes that the rider collided with the applicant on purpose, may be seen as a petty and vengeful act, but it is not persecution. I find that none of the matters that the applicant has described that occurred to her after the Cultural Revolution had formally ended when considered either individually or cumulatively amount to persecution.
29. The RRT said later that the issue was "not so much the Applicant's subjective interpretation, but the objective basis for her concerns".
30. In her statement in the current proceedings dated 7 September 2001 (A2), Ms Jin said that at the time she came to Australia:
I believed I was suffering from discrimination in China because of my race. I belong to the ethnic group known as MAN. Prior to the cultural revolution in China my father registered as being a member of HAN ethnic group to try to avoid discrimination, but was exposed during the cultural revolution. I was a child at that time. My parents were arrested and treated very badly. They were imprisoned. I was also treated badly. I dressed as a boy at that time in order to afford myself some protection, as girls of the MAN ethnicity were subject to attack as well as discrimination. I did well at school but was not able to go to university because of my ethnicity. After I married and had my child the discrimination continued. My daughter was not permitted to attend kindergarten and was not able to gain access to medical treatment as freely as were people of the majority races. I believe I was discriminated against at my place of work and eventually I believe I lost my job because of my race. I know that economic conditions in China were not good, but because of my race, I was one of the first to be terminated. I provided details of the discrimination and persecution I believe I suffered in China in documents lodged in support of application to be regarded as a refugee in Australia and also in interviews with DIMA and in evidence at the Refugee Review Tribunal. Whilst my application was not successful, I say that everything I said in support of my application was true and I genuinely believe that I was subject to discrimination and persecution in China, although I accept that the type of persecution and discrimination does not qualify me to be treated as a refugee in Australia. I was unsuccessful in obtaining a protection visa but I say that I have told the truth, I believe that I had good reasons for making my application and I have always resisted returning to China, even though I was told by DIMA that if I lodged an application in China for a spouse visa, then my chances of success would be much greater. I remain genuinely apprehensive about returning to China. My wish is that my daughter, Ma Jan Jan, be permitted to join my husband and myself in Australia.
31. Ms Jin said that her daughter, who was born on 20 January 1985 and is now aged 16, is living with her parents in China. They maintain contact by letter and telephone. Ms Jin said that her parents are now over 70, do not have a regular income and find it difficult to pay expenses for Ms Jin's daughter, such as school fees. Mr Ke has said that he will also support Ms Jin's daughter.
32. A few months after Ms Jin arrived in Australia, she started working as a domestic helper. She was not paid very much for this work and stayed in her first job for less than a month. Ms Jin said she met Larry Ho through a friend. She was told that he owned a club in Newcastle and he told her that he had organised a job for her as a general kitchen hand there. Ms Jin travelled to Newcastle to see about the job, but decided not to work for Mr Ho. She stayed in Newcastle with a friend, Lana, who is from Shanghai, who has a Chinese massage health business. She stayed overnight with Lana because she was sick while she was there.
33. Ms Jin said that she believed that the bridging visa she obtained after lodging her application for a protection visa, entitled her to work while her application was being processed. She was told this by friends rather than by departmental officers. She needed to work in order to support herself. She therefore believed that she was able to work until such time as her protection visa application had been processed and any review by the RRT had been concluded.
34. Ms Jin was asked about her interview by a departmental officer at the Rockdale office on 3 June 1999 in connection with her application for a spouse visa. She said that she told the officer that she had worked in China as a driver in a park doing maintenance work. She agreed that she had told the officer that administrative staff working in the department were called managers although she could not remember all the questions asked of her by the interviewer. With regard to her friend who works at the Northern China Dumpling Restaurant in Chinatown, Ms Jin said that she occasionally – once every week or two weeks - helped her friend when she needed help. She did not get paid for this as is the tradition in China when friends help each other. However, sometimes her friend would give her a gift, including food or drinks. Ms Jin said she started helping this friend in about 1998. She did not actually go to the Restaurant but helped the friend make Chinese dumplings at the friend's house.
35. Ms Jin was asked about the incident in November 2000 when she was detained by departmental officers in Bankstown. She said that after the interview with the departmental officer in Rockdale in June 1999, she stopped working with her friend making the Chinese dumplings because the officer indicated that this would be treated as working and she was not entitled to work in Australia. However, in about October 2000, she needed money, primarily for the support of her daughter, and did not want to be a financial burden on her husband. She saw an advertisement in a Chinese newspaper for a job in a Chinese massage parlour. She applied and started working on one or two days a week at a massage parlour in Burwood, doing massage for the relief of back and foot pain. The proprietor of the Burwood massage parlour, whose name was Su, also owned a similar parlour in Bankstown. On 28 November 2000, for the first time, he asked her to work at the Bankstown parlour because it was busy. It was there, on that day, that she was detained by departmental officers. Ms Jin said that when the departmental officers first arrived at the parlour and she was asked to give her name, she showed the officers a provisional driving license given to her by a friend. Her friend had told her that this was a convenient way of establishing a name when she did not want to disclose her real name to people at the parlour. People who worked at the parlours were known by European names and she was called "Nancy". When the departmental officers arranged for a Telephone Interpreter Service interpreter to assist, Ms Jin informed the officers of her real name. Ms Jin admitted that she knew, at that time, that she did not, have permission to work.
36. Ms Jin said that she had not told her husband directly about where she was working because she worried that he might think that she was being unloyal to him. She also knew that if she told him that she was doing massage, he would connect this with the sex industry.
37. Ms Jin said that her spouse visa application form had been completed for her by a migration agent. The agent would ask her questions, she would give an answer and he would fill out the form on her behalf. Ms Jin could not recall whether the agent asked her about her employment in Australia. The agent had asked her a lot of questions and she answered honestly. If he had asked her about her employment in Australia, she would have answered him honestly. Ms Jin said that in June 1998, she went to Vietnam for a holiday and lodged her spouse visa application form when she was there.
SUBMISSIONS
Applicant
38. Mr Mills, for the Applicant, said that the Respondent had put forward three grounds for refusing the grant of a visa to Ms Jin: firstly, that she made a false statement in connection with her application for a business visa; secondly, that she made a gratuitous application for refugee status; and, thirdly, that she worked illegally in Australia.
39. With regard to her application for a business visa, Mr Mills said that there is no direct evidence that Ms Jin made a false statement in order to obtain the visa. Her evidence was that a friend arranged the visa, completed her application form and handed this to an agent, from whose office Ms Jin collected the visa after it had been issued. Second, with regard to her application for refugee status, Mr Mills noted that the RRT did not suggest that she fabricated her application, or the reasons on which she grounded her application, and all the evidence indicated that Ms Jin made the application honestly, believing she was entitled to refugee status.
40. Third, with regard to her working illegally in Australia, Mr Mills said Ms Jin's evidence was that she believed that she was entitled to work in Australia until the RRT decision was issued affirming the decision to refuse her application for a protection visa. When Ms Jin helped her friend in making Chinese dumplings, this work was not work for remuneration in the ordinary sense. Nevertheless, Ms Jin got the impression from the Rockdale interview that she was not allowed to undertake such work and therefore stopped. Thereafter, she did not work until she had a dire need for funds, primarily for the support of her daughter in China, and did not want to ask her husband for money and be a financial burden on him.
41. Mr Mills noted that Ms Jin had been forthright in telling the Tribunal telling about her having worked illegally. He said that if Ms Jin was forced to return to China, this would mean her leaving her husband in Australia. It would be unfair to ask Mr Ke to abandon his country of choice and return to China where he has not worked for approximately 15 years. Moreover, if he did so, he would face the prospect of discrimination because of his marriage to Ms Jin. She would also be likely to experience discrimination of the kind that had occurred in the past. Even though such discrimination did not amount to persecution for the purpose of obtaining refugee status, nevertheless, for Ms Jin, such discrimination was very real.
Respondent
42. Mr Cureton for the Respondent, contended that Ms Jin is not of good character because of her past and present general conduct. In particular, he pointed to the most recent incident in November 2000 when Ms Jin was found working without permission when she was aware of this. Moreover, she was working using a false identity and, when first approached by departmental officers, gave a false name. He said that there had been insufficient time between this incident and now to establish her good character. Mr Cureton said there was also no evidence that Ms Jin had permission to work under the terms of her original bridging visa granted after she lodged her application for a protection visa.
43. Mr Cureton said that the other general conduct on which the Respondent seeks to rely includes Ms Jin having given false and misleading information in connection with the making of a visa applications. He noted that the 1997 business visa application stated that Ms Jin and the person with whom she travelled, Mr Meng, claimed to have been invited by Chase Engineering of Artarmon to discuss further business. A sales contract for vacuum pumps was submitted as evidence of the possible business (G documents page 28). Thus, Ms Jin entered Australia without a genuine business purpose. Secondly, Mr Cureton pointed to Ms Jin's conduct in connection with her spouse application. He contended that she had made false and misleading statements in connection with her work history in that she had not revealed her employment history in Australia. In particular, she had worked in Australia without permission to do so.
44. Mr Cureton referred the Tribunal to Direction No. 21 – Visa Refusal and Cancellation under s 501 of the Act, in particular, paragraph 1.9(a)(b), insofar as Ms Jin had been involved in activities indicating contempt or disregard for the law, and has provided a bogus document or made a false and misleading statement. Such considerations support the Respondent's contention that Ms Jin does not pass the character test.
45. With regard to the exercise of the discretion in s 501(1) to grant a visa notwithstanding that the person does not pass the character test, Mr Cureton referred the Tribunal to Part 2 of Direction No. 21. He noted the seriousness of Ms Jin's misconduct: the false statements, the use of a false name, working without permission and the importance of general deterrence and sending a clear message to others that such conduct is not acceptable to the Australian community. Mr Cureton contended that the Australian community would expect that, because of her conduct, she would not be allowed to remain in Australia. With regard to the best interests of Ms Jin's child Ma Jan Jan, Mr Cureton noted that she is living in China with her grandparents, at nearly 17 years of age is nearly an adult, is not an Australian citizen and can be cared for by Ms Jin on her return to China.
46. Of the other considerations to which the Tribunal should have reference, Mr Cureton contended that whilst there will be hardship for Mr Ke and Ms Jin, these considerations are outweighed for the need to protect the Australian community and, in particular, the integrity of the immigration system. Moreover, the hardship to Mr Ke should be discounted to a degree because he entered into a relationship with Ms Jin knowing that her immigration status was uncertain. Thus, Mr Cureton said that the Respondent contends that the s 501(1) discretion should not be exercised in favour of Ms Jin.
FINDINGS
47. The Tribunal accepts Ms Jin's evidence that the business visa, which she used for entry to Australia, was arranged for her by a friend and she did not intentionally, or knowingly make a false and misleading statement in her visa application. Nevertheless, the Tribunal notes that she must have signed the visa application and therefore must accept responsibility for it. Ms Jin arrived in Australia on 31 May 1997 and submitted an application for a protection visa within a short time thereafter. The Tribunal notes that the application which appears in the Supplementary G Documents, Volume 2 has not been stamped with a date of receipt. The Tribunal also notes that in this application, when giving details of her past employment, Ms Jin recorded that her position/occupation with the Tian Jin Zheng Jian Company was that of driver. The Tribunal does not have before it a copy of the statement which accompanied Ms Jin's protection visa application, and there is no evidence that any statement she made in this application was false or misleading.
48. Based on Ms Jin's evidence, the Tribunal finds, that she suffered various acts of discrimination during the time that she lived in China and held an honest belief at the time she submitted an application for a protection visa that she was a refugee and therefore entitled to refugee status.
49. Mr Ke and Ms Jin were married on 17 February 1998 after a courtship of approximately 7 months. There is no dispute as to the genuineness of this relationship and of their desire to live as a family unit, including Ms Jin's daughter by her previous marriage, Ma Jan Jan, who is now 16 years of age. Mr Ke is an Australian citizen, having resided in Australia since 1990. For the past five years, he has worked as a manager at Coles Supermarket at Caringbah and is intent on remaining in Australia.
50. The Tribunal notes that in Ms Jin's application for a spouse visa, she gave details of her employment history in China, describing her job as a manager, but did not give details of any employment in Australia. The Tribunal accepts her evidence that the application form was completed for her by the migration agent, Robert Bock, on the basis of her answers to questions posed by him (G documents page 14). Ms Jin's oral evidence was that she could not recall whether Mr Bock asked her about her employment history in Australia, but she told the Tribunal that, had he done so, she would have answered his questions honestly. The Tribunal notes that when Ms Jin was interviewed by a departmental officer at Rockdale on 3 June 1999, she was asked about her occupation in China. The departmental officer records that Ms Jin told her that she was a driver at a park doing maintenance work. When asked why her passport gives "manager" as her occupation, she answered "because manager is the general title for people who are working as administrative staff" (G documents page 42).
51. Ms Jin said in oral evidence, that she believed the bridging visa that she was granted on 3 July 1997 after she had lodged an application for a protection visa, entitled her to work legally in Australia until 28 days after a decision had been made on her protection visa application and any review determined. Ms Jin said that she was told this by her friends rather than a departmental officer.
52. Ms Jin's application for a protection visa was refused on 28 April 1998, she sought a review of this decision by the RRT on 13 May 1998, and, having appeared at an RRT hearing on 28 January 1999, on 5 February 1999 the RRT affirmed the decision to refuse the grant of a visa.
53. Ms Jin told the Tribunal that from about 1998, she had been "helping" a friend who worked at a Chinese restaurant with making Chinese dumplings. This help, which was undertaken at her friend's home, was performed approximately once a week or once a fortnight and was not usual paid employment. Ms Jin said that her friend would sometimes give her a gift in recognition of this help which might take the form of food or drinks. The Tribunal finds, based on this evidence, that this was not regular paid employment.
54. Ms Jin acknowledged that she was working illegally when apprehended by departmental officers on 28 November 2000 (Supplementary G Documents, Volume 2 page 125). She explained to the Tribunal that she answered an advertisement in a Chinese newspaper to perform Chinese massage at a massage parlour in Burwood on one or two days per week. On 28 November 2000, when she had been undertaking this employment for approximately a month, she was asked by the proprietor of the Burwood massage parlour to work at his other massage parlour at Bankstown because it was busy there. She agreed to this and it was there that she was apprehended by the departmental officers. Whilst initially Ms Jin gave the officers a false name and showed them her friend's provisional driving licence when she was detained she gave them her real name. This is confirmed in the Departmental Minute of 28 November 2000 (Supplementary G documents, Volume 2, pages 1–5). Ms Jin acknowledged that she knew she was working illegally, but explained that she was reluctant to ask her husband for money and impose a financial burden on him, particularly with regard to money she needed to send for her daughter's expenses in China . Her daughter was living with her parents who were supporting her without themselves having any regular source of income.
55. The Tribunal notes that Ms Jin spoke frankly about matters which she obviously found difficult to discuss and, thereby, established her credibility.
56. If Ms Jin is required to return to China, the Tribunal accepts that there would be significant hardship to her in the separation from her husband. Mr Ke said that he would not return to China. He has established himself in Australia over the past 11 years and has not worked in China for some fifteen years as result of spending four and half years in Hong Kong before coming to Australia. The Tribunal also accepts that Ms Jin has a genuine fear of continuing discrimination against her if she does return.
APPLICATION OF THE LAW
57. The Respondent contends that Ms Jin, by reason of her past and present general conduct and the application of s 501(6)(c), is a person not of good character and is, therefore, a person who does not pass the character test in s 501(1).
58. What is meant by "good character" has been the subject of discussion in a number of Federal Court and Tribunal decisions. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short term entry permit may not justify the conclusion that he is "not of good character" within section 501 (2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long term entry
59. In Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277)
60. The Tribunal must also have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, Ms Jin does not pass the character test, it will proceed to consider the exercise of the discretion in s 501 (1) to grant a visa, notwithstanding that Ms Jin does not pass the "character test". In so doing, the Tribunal will have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
61. Firstly, with regard to whether Ms Jin is of good character, the Tribunal had regard to paragraph 1.9 of Part 1 of Direction No. 21. This states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, if relevant to the facts of the particular case, where those matters would, in the absence of any counterveiling factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs (a) and (b) which direct the decision-maker to consider:
(a) Involvement in activities such as…. breaches of immigration law; or…
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement, or false or misleading declaration
62. Ms Jin acknowledged that she worked illegally in October/November 2000 when she worked as a casual employee in a Chinese massage parlour. At that time, although, as a result of the bridging visa, Ms Jin was in Australia legally, the bridging visa did not permit her to work (Supplementary G Documents Volume 2 page 109). Thus, Ms Jin was in breach of Australia's immigration law, albeit that her justification for working illegally was the need to provide for her expenses, in particular to send money to China to provide for her daughter, who is being cared for by Ms Jin's parents who do not have the benefit of a regular income. Ms Jin said that she took this course because she did not want to impose a further financial burden on her husband.
63. With regard to whether Ms Jin had permission to work under the terms of her original bridging visa issued on 3 July 1997, this was not clear from the evidence before the Tribunal at the hearing. At the Tribunal's request, Mr Cureton provided a copy of Schedule 8 of the Migration Regulations 1994 in effect on 3 July 1997. This Schedule, read in conjunction with the bridging visa (Supplementary G Documents, Volume 2, page 12A), suggests that Ms Jin may not have been permitted to work. However, the visa, by itself, only says "Conditions Mig Reg. Sched 8". There is no evidence that a copy of the Schedule was supplied to Ms Jin, nor that this was drawn to her attention. Her evidence is that her friends told her the bridging visa entitled her to work during the currency of the visa. The Tribunal therefore, makes no finding as to the legality of Ms Jin's having worked during the currency of this first bridging visa.
64. With regard to paragraph 1.9(b), the Tribunal is not satisfied that Ms Jin knowingly supplied a bogus document since her business visa application was organised by a friend, nor is it satisfied that Ms Jin knowingly made a false or misleading statement in connection with her Application for a visa.
65. Paragraph 1.9 provides that matters such as those set out in paragraph 1.9(a) and (b), in the absence of any counterveiling factors, constitute a failure to pass the character test. In Ms Jin's case, there are counterveiling factors but, in the Tribunal's view, they are insufficient to outweigh the evidence that she is not of good character by reason of her working illegally. Thus, she does not pass the character test by virtue of the application of s 501 (b)(c)(ii).
66. Having so determined, the Tribunal must consider whether to exercise the discretion in s 501(1) to grant a visa, notwithstanding that Ms Jin does not pass the character test. The Tribunal had regard to Part 2 of Direction 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
67. 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.
68. With regard to paragraph 2.3(a), the protection of the Australian community, paragraph 2.4 states:
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…
69. Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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)
70. Examples of offences which are considered by the Government to be serious include serious crimes against the Migration Act 1958 which in turn include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant mitigating factors provided by the non-citizen. When considering the likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment. Paragraph 2.11 states of general deterrence that this "aims to deter other people from committing the same or a similar offence".
71. With regard to paragraph 2.3(b), the expectations of the Australian Community, paragraph 2.12 states that non-citizens should obey Australian laws while in Australia. With regard to paragraph 2.3(c), the best interests of the child, paragraph 2.15 states that in general terms "the child's best interest will be served if the child remains with its parents". Paragraph 2.16 states that when considering the best interests of the child, decision-makers should have regard to a number of factors including the nature of the relationship between the child and the non-citizen, the length of any separation, and the age of the child.
72. There are also other considerations to which a decision-maker is directed by paragraph 2.17, which 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, business and other ties to the Australian community, genuine marriage to an Australian citizen, the degree of hardship caused to immediate family members in Australia, the family composition of the non-citizen's family both in Australia and overseas, and any evidence of rehabilitation and any recent good conduct.
73. With regard to the primary considerations, the Tribunal has found, as acknowledged by Ms Jin, that she worked illegally in Australia on a casual basis for approximately one month in about October/November 2000, a matter which is regarded as serious by the Australian community. The mitigating factor here is that the reason for Ms Jin doing so was to enable her to earn some additional money which would be used primarily for the support of her daughter in China, because this was not a financial burden which she wished to impose upon her husband.
74. Secondly, with regard to the likelihood that the conduct may be repeated, in the Tribunal's view, there is no likelihood of this if Ms Jin is granted a spouse visa. With regard to general deterrence, the Tribunal considers that deterring others from working illegally is a relevant factor. With regard to the second primary consideration the expectations of the Australian community, there is a clear expectation that non-citizens should comply with Australian law and should comply, in particular, with the conditions of their visas.
75. With regard to the third primary consideration, the best interests of the child, the Tribunal notes that Ma Jan Jan, Ms Jin's daughter, is 16 years of age. She has been living with her grand parents in China since Ms Jin left on 30 May 1997. They maintain contact by letter and telephone and Ms Jin's evidence was that her daughter wishes to join Ms Jin in Australia.
76. Finally, with regard to other considerations, there is no dispute about the genuineness of Mr Ke's and Ms Jin's marital relationship. Mr Ke is an Australian citizen who has lived in Australia since 1990 and has now made his life here. He does not intend to return to China where he has not worked for over 15 years. Mr Ke told the Tribunal that Ms Jin is the "the first love of his life" and, in his statutory declaration, he has spoken of the love and happiness that they share (Supplementary G documents Volume 1 page 30). He has expressed his willingness to support Ms Jin's daughter, and a desire that they should be able to live together as a family unit. In the Tribunal's view, significant hardship would be caused to Mr Ke should Ms Jin be denied a spouse visa. It would also cause significant hardship for Ms Jin to return to China, in particular, as a result of the separation from her husband. However, she also has genuine fear of further discrimination if she were to return.
77. Whilst the incident involving Ms Jin working illegally is of relatively recent origin, the Tribunal notes that the work involved was casual and that the reason for the work was, primarily to provide extra funding for the support of her daughter. Such parental motivation will persuade many people to take action that might otherwise seem unwise. The Tribunal notes that Ms Jin has been in Australia legally with the benefit of a legitimate visa at all times, has otherwise complied with departmental requirements and has been honest in acknowledging her misconduct to the Tribunal. In the Tribunal's view, the Australian community would take the view that her misconduct is not so heinous as to outweigh the other considerations which weigh the balance in favour of allowing Mr Ke and Ms Jin to live together as a family unit in Australia with Ms Jin's daughter.
78. The Tribunal determines, therefore, that the discretion in s 501(1) should be exercised in favour of Ms Jin to issue her with a spouse visa. The Tribunal sets aside the decision under review and remits the matter back to the Respondent with a direction that Ms Jin be granted a spouse visa under s 501(1) of the Act.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 13 September 2001
Date of Decision 18 September 2001
Solicitor for the Applicant Mr D Mills, Stuart & Mills Solicitors and Attorneys
Solicitor for the Respondent Mr N Cureton, Blake Dawson Waldron Solicitors
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