Kim and Minister for Immigration and Citizenship

[2007] AATA 2036

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2036

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2577

GENERAL ADMINISTRATIVE DIVISION        )

Re             ANGEL KIM

Applicant

AndMINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

TribunalMr Julian Block, Deputy President

Date11 December 2007

PlaceSydney

DecisionThe decision under review is affirmed.

..................[sgd]............................

Mr Julian Block
  Deputy President

CATCHWORDS

IMMIGRATION – application for a spouse visa – history of serious breaches of migration law- character test –discretion under Par 2 of Direction 21 – decision under review affirmed

RELEVANT ACT/S:

Migration Act 1958: ss 234, 236, 417, 501

CITATIONS

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Re Hobbins and Minister for Immigration and Multicultural Affairs [2006] AATA 279

Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575

Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1331

Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192

Re Tremlett and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244

Re Gorges and Minister for Immigration and Multicultural Affairs [2002] AATA 89

Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156

Re Ayaad and MIMA [2000] AATA 935

OTHER REFERENCES

Ministerial Direction No. 21 – Visa Refusal and Cancellation

REASONS FOR DECISION

11 December 2007 Mr Julian Block, Deputy President

PART A - introduction and background

1. The decision under review is the refusal by a delegate of the Respondent of an application for a Combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) Visa (“the Visa”) applied for by Jian Ming Lin (“the Visa Applicant”). In respect of that application the Visa Applicant was sponsored by his wife, Angel Kim, who is the Applicant. The Visa was refused on the grounds that the Visa Applicant did not satisfy the character test set out in s 501 of the Migration Act 1958 (“the Act”).

2.      The Applicant was represented by Mr B. Zipser of counsel, instructed by E.K. Lawyers; the Respondent was by represented by Mr Julian Pinder of DLA Phillips Fox, solicitors.

3. The Tribunal had before it the T documents and also the supplementary T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The supplementary T documents are not sequentially numbered after the T documents; accordingly references to either of them will be effected by a reference to the relevant page or pages preceded by as relevant “T” or “ST”. The Tribunal also admitted into evidence exhibits as follows:

Exhibit A1:A witness statement dated 17 July 2007 by the Applicant;

Exhibit A2:A witness statement dated 10 October (no year cited) by Launceston Lee Truong (“Mr Truong”), who is a brother of the Applicant;

Exhibit A3:A witness statement dated 31 October 2007 by Wang Chun Li (“Mr Li”);

Exhibit A4:A handwritten affidavit dated 28 November 2007 by an interpreter, Ms Helen Yang, obtained under circumstances more fully referred to later in these reasons; and

Exhibit A5:A witness statement dated 13 July 2007 by the Visa Applicant.

4.      The Respondent’s Statement of Facts and Contentions (“SoFaC”) dated 22 August 2007 contains under the head of “Facts”, a useful summary of the matters taken into account by the Respondent’s delegate in respect of the decision to refuse the Visa; clause 2 of the Respondent’s SoFaC reads as follows:

…

FACTS

The character test

2.The delegate found that the visa applicant failed to pass the character test in s 501(6)(c)(ii) due to his past and present general conduct. The delegate took the following matters into account in making this decision:

2.1The visa applicant's agent's submissions conceded that the visa applicant acquired a fraudulent Singaporean passport and visa for travel to Australia through a friend in China.  The delegate was satisfied the visa applicant did this with the knowledge that it was illegal and would have paid a significant fee.

2.2The visa applicant used this fraudulent passport and identity to travel to Australia, thereby committing a number of offences.

2.3After arriving in Australia, the visa applicant used the fraudulent passport and false identity to apply for a Protection visa and thereby committed further breaches of the law.

2.4The visa applicant maintained this deception by applying for review of the delegate's refusal to the Refugee Review Tribunal (RRT) and by applying for Ministerial intervention under s 417.

2.5The delegate observed that the applicant's claims as made in his Protection Visa Application (PVA) and to the RRT were inconsistent.  Given they were made in a false identity, the delegate was satisfied they were fabricated and not the result of a genuine need for protection.

2.6Following his unsuccessful applications, the visa applicant failed to depart Australia and was an unlawful non-citizen for a lengthy period.  During this time he worked illegally.

2.7In relation to good conduct, the visa applicant departed voluntarily from Australia.  His agent submitted he was kind to his mother-in-law.  He was also relatively open in his current application about his previous use of a false identity.

2.7.1However the delegate expressed particular concern at the visa applicant's attempts to play down the gravity of his conduct.  He failed to acknowledge that his actions involved criminal offences, and that he was responsible for these actions.  For example, the visa applicant, through his agent, stated that he had no criminal convictions and there was no evidence of any other criminal conduct.

2.7.2Furthermore, the visa applicant's departure, although voluntary, only took place after he had exhausted other avenues to remain in Australia.  It occurred at a time convenient to him, once he had married the review applicant and had to depart to apply for migration.

2.7.3The delegate concluded that the little evidence there was of good conduct was negligible when compared to the degree and duration of bad conduct over the entire period between the visa applicant's arrival in Australia and the delegate's decision.

…

5.      Evidence was given by the Applicant and her brother Mr Truong with the help of an interpreter in the Khmer language; evidence was given by Mr Li and the Visa Applicant (in the latter case by telephone link) with the assistance of interpreters in the Mandarin language.

PART B - the evidence of the applicant

6.      The evidence in chief of the Applicant consisted in large part of her confirmation that, to the best of her knowledge and belief Exhibit A1 is true and correct.  Exhibit A1 is included (verbatim) in these reasons as follows:

On 17 July 2007, I, Angel Kim, of … New South Wales, affirm:

1.In 2000 I arrived in Australia from Cambodia after my application as a “last remaining relative” was reviewed by the Migration Review Tribunal.

2.In October 2002 I first met my husband, Jian Ming Lin.

3.I am original from Cambodia. I speak Cambodian, Mandarin, Vietnamese and a little bit of English. My husband and I communicated with each other in Mandarin.

4.In August 2003 Jian Ming Lin and I commenced living together.

5.Between October 2002 and August 2003:

a)My husband told me that he was previously married and was now divorced with two children.

b)My husband told me that he was in Australia as a construction worker.

c)My husband told me that he was working as a construction worker in Australia, in a private company.

d)My husband did not tell me that he was an illegal or unlawful non-citizen in Australia. In fact, it never occurred to him or to me that he was illegal or unlawful because I always thought that if a person was illegal or unlawful in Australia, that person would be arrested and deported. However, I knew that my husband was not an Australian citizen and that he was a Chinese national.

e)My husband did not tell me that he had applied for a refugee visa in Australia, and that the Department and the Refugee Review Tribunal had refused to grant him a refugee visa.

6.In September 2003, Jian Ming Lin and I married. Around this time I became aware that my husband had a Singapore passport in the name of Poh Chin Lee.  I asked him about this passport. He told me that the local authority would not issue authority for him to obtain a passport to come to Australia.

7.Shortly after my husband and I married, we went to a migration agent in Chinatown (Priscilla International) and asked the migration agent to help us with my husband’s visa status in Australia. The migration agent asked me to sign some documents, which I did.

8.Between September 2003 and late 2004, my husband worked about 1 or 2 days each week as a construction worker. I was aware that he did not have permission from the Department of Immigration to work in Australia. However, I was on Centrelink benefit and was caring for my elderly mother and could not work. It was necessary for my husband to help me so that we had some money to support ourselves and to buy food and other essential items.

9.In January 2005 my husband decided to depart Australia. I encouraged him to return to China so as to comply with the Department of Immigration’s requirements. I also thought that by returning to China it would fasten our reunion as my application to sponsor my husband would be granted. I decided to accompany my husband back to China because:

a)I wanted to show Jian Ming Lin that I always love him, and more importantly, I wanted to meet his family and his local community and I wanted to see first hand experience his living environment.

b)I wanted to give him assurance that I cared and respected his decision to return China.

c)I wanted to show my husband that he could trust me and have confidence in my decision to stand by him as his wife, because he has chosen a courageous decision to voluntarily depart from Australia, and to face his own local community, after a long period of absence. 

d)And I wanted to take the opportunity to lodge a spouse visa application in China.

10.I have an elderly mother. She is over 80 years old. She can no longer walk and she is confined in a wheelchair and she requires constant hospitalization. My older sister and I share the responsibility of caring for my mother. I felt extremely guilty for all the troubles that my sister, brother and mother had gone through many years of struggle to have me sponsored to Australia from Cambodia, and in return, the least I could have done is to take care of my mother with the help of my husband. I spent many years separating from my family and when I finally got reunited, I felt that it was not fair for me to go through the court process to get my own husband to be united with me as other normal couple.

11.If my husband was with me:

a)He could help me financial as he has technical skill in construction and his presence would allow my mother and me to lead a normal comfortable life.

b)He could help to take care my mother who is immobile and is currently in and out of hospital.

c)I feel my life as a complete normal woman as I have always wanted a loving and caring husband because I had been single and never had a partner in my life.  As evidence in the phone records, I regularly communicate with my husband by landline and using prepaid phone cards.  Those telephone bills are annexed herewot as annexure “KA-1”.

12.I do not want to go to China to live with my husband. I am not Chinese. I was born and grew up in Cambodia. I want to continue to live in Australia. I want to be united and live with husband in Australia. This is now my only wish in life.  I do not want to live the way I am at the moment because I am alone, depressed and feel miserable.  I would cry and feel emotional when I think of my husband, but more importantly about my life.

13.I do not have the strength to go on in life nor do I have the strength to face the legal battle because I am alone with a sick mother.

14.Before I met my husband I never had a partner. I was single and alone. I am very sad without my husband. I love my husband and I want him to come to Australia so that we can be together.

Affirmed …

7.      The Applicant said that her mother died on 2 August 2007.  She said also (in relation to clause 8 of Exhibit A1 at paragraph 6 above) that the Visa Applicant worked while in Australia either one or two days per week.

8.      The remainder of this Part B relates in the main to the cross-examination of the Applicant.

9.      The Applicant first met the Visa Applicant in October 2002 and married him in September 2003; they started living together in August 2003.  The Visa Applicant departed Australia in January 2005 in order to apply, from China, for the Visa.  When he left Australia, he was accompanied by the Applicant who stayed with him in China for about a month.  She said that she could not stay longer because her mother was ill and required attention.

10.     The Applicant was asked whether she has visited China since then and she said that she did so in August 2005 (and then altered that evidence to refer to November 2005).  She said that she could not go to China on any other occasions because firstly, “I wait for the documents to sponsor” and secondly, she had responsibilities to her mother.

11.     The Applicant, when she lived in Cambodia, worked in a bank as a qualified accountant.  Since coming to Australia in 2000, she has looked after her mother.  She said that she intends to seek work in a factory; she does not think that she can work as an accountant because of her lack of English.  She said also that this would be so even in relation to a business owned and run by former Cambodians.  She is currently living on Centrelink payments and it would seem that she has done so for some considerable time.  The Tribunal notes that it is now nearly four months since her mother’s death but there was no evidence before the Tribunal as to any attempt by her to obtain employment, since her mother’s death.

12.     The Applicant speaks fluent Mandarin, apart from other languages, and it is in this language that she conversed with the Visa Applicant.

13.     The Applicant was then cross-examined at some length as to what she knew of the Visa Applicant’s situation in Australia at the time when she married him.  She was asked by way of commencement whether she knew about his protection visa application and the proceedings in the Refugee Review Tribunal (“RRT”).  She said that she had no knowledge of any of them at the time of the marriage.

14.     In respect of clause 6 of Exhibit A1 (on page 5), the Applicant said that she learned of the Visa Applicant’s Singapore passport in the name of Poh Chin Lee (referred to henceforth in these reasons as “the Singapore name”) only when she signed the marriage certificate.

15.     When asked how she knew that the Visa Applicant had a false passport, she said that she saw it at the wedding ceremony.  When asked why the Visa Applicant would need his passport at the wedding ceremony, she said that she and the Visa Applicant had to attend at the Registry of Births, Deaths and Marriages (referred to henceforth in these reasons as “the Registry”) and that it was necessary for the Visa Applicant to provide the false passport at that time.

16.     The Applicant said that the Visa Applicant had a Singaporean passport because the Chinese authorities would not let him leave China.  (She did not furnish any reason why it was obtained in the Singapore name.)

17.     The subsequent cross-examination in this area was lengthy and convoluted and at times quite extraordinarily contradictory.  The Applicant said that some six months prior to the wedding ceremony, she and the Visa Applicant sought the assistance of a migration agent.  She said that they did so in connection with the Visa Applicant’s status and not hers, because she was then, as she is now, a citizen of Australia.

18.     The Applicant agreed that the migration agent was consulted as to the Visa Applicant’s ability to stay in Australia.  It was put to her that she had said that she knew nothing about his protection visa application and she was asked what she knew about his status prior to the wedding.  She said that it was not clear to her.  When asked categorically whether she knew whether he was legally or illegally in Australia, she answered she thought that he was legally in Australia because he was such a nice person.

19.     It was at this juncture that I note that questions of the Applicant were at times answered in a manner which was not germane to the questions and she was informed that it was necessary to ask her to answer the question put to her.  She admitted, in relation to clause 8 (on page 5) of Exhibit A1, that she knew that the Visa Applicant did not have permission to work in Australia.  When asked whether she had enquired of the Visa Applicant why he could not work in Australia, she furnished an answer which was not in fact an answer.  She said that he had to work to support her because she had to look after her mother.

20.     It was then put to the Applicant that she knew prior to the wedding that the Visa Applicant might have to go back to China.  She said that she did not know until she made enquiries at the Department of Immigration and then said that “I believed that he had the right to stay in Australia”.

21.     When asked why then it was necessary for her to sponsor him, her answer was “because I am married to him and I wanted him to stay in Australia”.

22.     When asked whether she married him in order to strengthen his ability to stay in Australia, she said that this was not so and that she married him because she loved him.

23.     When she asked whether his production of a Singaporean passport in a different name caused her to be suspicious, her answer was “we believed we would look after each other”.

24.     The evidence as to the visit to the Registry and as to the wedding ceremony itself, was (as I have said) lengthy and confusing in the extreme.  As to which came first is not clear; moreover the fact that the ceremony was conducted by a marriage celebrant emerged only from a statement by Mr Zipser from the bar table coupled with a reference to the marriage certificate (at T p50).

25.     The Applicant said of the false passport that she did not believe it was a false passport and she also denied that the Visa Applicant entered Australia on a false passport.

26.     The Applicant said that she does not have children.  She has two sisters and a brother, all of whom live in Sydney.

27.     When asked whether, if this application failed, she would be reunited with the Visa Applicant in China, she said “I have a feeling that because I am Cambodian I may not be able to live in China.  I want him here in Australia” and when asked whether Cambodia would be an option she said “I love Australia.  I could not live there.  I want him here”. And when asked why she could not live in China, she answered “because I am an Australian citizen and I don’t know its customs”.

28.     The Applicant said that the Visa Applicant left her some money for living costs and that now and again he sends her money but she did not specify amounts of payments or times of payments.

29.     It must be remembered that the Applicant is a person who was a qualified accountant working in a bank.  She speaks a number of languages.  She and the Visa Applicant consulted a migration agent months before their marriage.  Her evidence that she thought the Visa Applicant was legally in Australia cannot be true.  As to precisely how much detail she knew in not clear but she certainly knew prior to the marriage that the Visa Applicant was not legally in Australia.

PART C - the evidence of the character witnesses

30.     Evidence was given by two character witnesses.  Mr Truong is the Applicant's brother and his witness statement is Exhibit A2.  The other character witness, Mr Li, is a friend of the Visa Applicant and his witness statement is Exhibit A3.

31.     Mr Truong gave evidence as to the fact that the Visa Applicant is a man of good character.  His ability to say so must be considered in the light of the fact that he and the Visa Applicant do not have any language in common.

32.     Mr Truong was asked in cross-examination, with reference to clause 9 of his witness statement, how he knew that the Visa Applicant is a man of good character.  His answer was that his mother told him so and also because he observed the Visa Applicant’s behaviour.

33.     As to clause 10 of his witness statement, Mr Truong had no real knowledge as to the Visa Applicant’s presence in Australia; he thought, so he said, that the Visa Applicant’s application was being processed.  His sister, the Applicant, had told him that she and the Visa Applicant had consulted a migration agent.

34.     Mr Truong said that he did not know of the Visa Applicant’s illegal entry into Australia at the time of the marriage; he came to know of it only after the Visa Applicant left Australia.  (It is relevant to note that Exhibit A2 is silent as to this aspect.)

35.     Mr Truong said that he believed that people coming to Australia should obey the law.

36.     Evidence was next given by Mr Li whose witness statement is Exhibit A3.

37.     In cross-examination, Mr Li said that the Visa Applicant stayed with him from March 2001 to October 2002.  He said that he heard the Visa Applicant quarrelling with his wife in the course of telephone conversations with her.  He said also that he knew nothing whatever about the Visa Applicant’s immigration situation or of his actions and “I wouldn’t ask him anyway”.

38.     It was put to Mr Li that he had said (clause 4 of Exhibit A3) that the Visa Applicant is of good character and an honest man.  Mr Li said that so far as he was concerned, the Visa Applicant behaved honestly towards him and that was sufficient for him “for me he trustworthy – that’s what I mean by good character”.

39.     Mr Li was asked whether it was fair to say that in his view immigration law is important.  His answer was that if the Visa Applicant was good to him, Mr Li, that was sufficient.  It was then put to Mr Li by way of hypothesis that a person might be good to him, Mr Li, even though he committed a serious offence against another person.  Mr Li agreed that in these circumstances such a person would not be of good character.

40.     The evidence of the two character witnesses was in my view of little if any value.

PART D - the evidence of visa applicant

41.     It must be noted by way of preface that Exhibit A5 was signed by the Visa Applicant in China in its Mandarin version and that there was no evidence before the Tribunal which would establish that the English version tendered was correct.  This potential area of difficulty was solved by having the present interpreter agree to compare the two.

42.     It was in these circumstances that Exhibit A4 was prepared and tendered; it certifies that the interpreter compared Exhibit A5 in its two different language versions and that they match.  Exhibit A5 is included (verbatim) in these reasons as follows:

On 13 July 2007, I, Jian Ming Lin of … China, say:

1.In 1978 I married Ai Yu Wang in China. We had two children.

2.In May 1999 I traveled from China to Singapore. I traveled on my own passport. When I arrived in Singapore a person in Singapore organized a false passport fro [sic] me, which was not in my name, to come to Australia. The person in Singapore who organized a passport for me was a friend of a friend from Fujian Province, China.

3.In May 1999 I arrived in Australia.

4.In about June 1999 I went to a migration agent in Chinatown, Sydney. I told the migration agent that I feared returning to China and at that point I was advised to apply for a refugee visa. The reason I feared returning to China was because I was a Christian, I had been involved in an underground Christian church in China. I feared persecution because of my involvement in the Christian church. I gave this information to the migration agent.

Page signed and dated

5.At some time I attended a hearing in the Refugee Review Tribunal (“the Tribunal”). The information I told to the Tribunal about my involvement in the underground Christian church was true.

6.My recollection is that in about 2002 the Tribunal made a decision not to grant me a refugee visa.

7.In October 2002 I first met Angel Kim. In August 2003 Angel Kim and I commenced living together. In September 2003 we married.

8.Between October 2002 and September 2003, I did not tell Angel Kim that I had applied for a refugee visa in Australia and that the Tribunal refused to grant me a visa.

9.Before I married Angel Kim in September 2003, I did not tell her that I had no valid visa to remain in Australia. I did not think that I was considered as an illegal person because at all times I was under the impression that I was allowed to stay in Australia whilst my migration agent was taking care of the application.

10.In the period that I lived with Angel Kim, she was taking of her elderly mother. In this period I worked 1 or 2 days each week on a construction site. I was aware that I did not have permission to work in Australia. However, I needed to earn some money to support myself and Angel Kim and her elderly mother. I felt that I was a responsible person and did not want to impose on Angel Kim to take care of me, especially when Angel Kim was receiving Centrelink benefit to care for her sick mother.

11.In January 2005 I voluntarily returned to China. Angel Kim and I were certain that the most sensible way for us to be united with each other as a married couple, was for me to voluntarily return to China. I traveled to China with my wife, Angel Kim. My wife had the opportunity of meeting my son and my other relatives.

12.Since returning to China, I am still a Christian. In the morning and evening I pray at home.

Page signed and dated

13.In late 2005 Angel Kim came to visit my family and I. It was difficult for both of us living in different countries. I felt extremely disappointed and ashamed that my decision to depart Australia voluntarily had not been taken into account, in light of the existence of our relationship.

14.I currently communicate with Angel Kim by telephone 2 or 3 times each week. Angel Kim phones me and we talk a lot about our current situation, including our struggle to cope with the long distance relationship.

15.I have not seen my former wife Ai Yu Wang for many years.

16.I love Angel Kim. That was the reason I chose to depart Australia voluntarily to save the Australian taxpayers and to comply with the Australian migration system. Because of my love for my wife, I was willing to do everything right so as to be a responsible husband for Angel Kim and to be a loving son-in-law for her mother.

17.In 2006 I joined the Red Cross in China. Attached a copy of my membership card and a document which I am told is an English translation of the membership card.

18.In light of the evidence, especially, my decision to depart Australia voluntarily and my voluntary work with a humanitarian agency, I would ask for my wife and I to be united in Australia.

19.I ask that my wife and I can be united in Australia. It is extremely difficult for me and my wife to be in love but can not live with each other as other couples. Each time we talk on the phone both of us would shed a lot of tears. We became emotional because of the extreme circumstances in which I now find myself. Also during the period I have lived with Angel Kim’s mother, I have grown attached to her and her family because I was involved in looking after her. I treated and respected her as my mother-in-law and it is my duty to be united with my wife in order that I could work and take care, not just my wife, but in this case, my elderly mother-in-law.

Signed and dated

43.     The Visa Applicant was asked in examination-in-chief whether Exhibit A5 was true and correct to the best of his knowledge and belief.  He said that it was.  When asked to read Exhibit A5, he said that “most of it is true”.  He went on to say that there were parts of it that he could not understand but to the extent that he could understand it, it was true.  It was in these circumstances that it became necessary for Mr Zipser to ask him to consider Exhibit A5 paragraph by paragraph.  This procedure resulted in his confirmation of each paragraph but subject to the following amendments or variations:

(a)As to clause 1, the Visa Applicant said that he did not ever marry the woman referred to as his wife and that they lived together; (it is in these circumstances that reference in the Applicant’s evidence to his having been divorced cannot be true).

(b)As to clause 4, the Visa Applicant said that “I told the migration agent about being a Christian only after I changed my name”.

(c)As to clause 5, he was asked whether he appeared before the RRT or the Migration Review Tribunal and he said that he did not understand.

(d)As to clause 6, he said “may be it is true”.

(e)As to clause 14, he said that he communicated with the Applicant nearly every day and not two or three times a week.

44.     The remainder of this Part D relates to the cross-examination of the Visa Applicant.

45.     The Visa Applicant said that he first arrived in Australia on 21 May 1999.  He was asked whether his protection visa application was lodged on 1 July 1999.  He replied that he did not remember the exact date but it was “a couple of months after my arrival.  My agent wrote it for me”.  When asked whether he told his migration agent (a female) what to write, he said “No, I paid her money and left everything to her”.

46.     The Visa Applicant said that he was not told that his protection visa application had been denied: “I heard while I was on a construction site that I could not apply for that visa using my Singapore name.  Then I went to another migration agent – a couple – and said I will apply in my own name”.

47.     When asked the name of the new migration agent, the Visa Applicant said that he did not remember.  (The T documents indicate that the Visa Applicant was first represented by a migration agent named Linda Liu, who is referred to henceforth as the “First Migration Agent” and thereafter by “Pricilla International” who is referred to as the “Second Migration Agent” or as “Pricilla”.  For the most part, references to the migration agent should be construed as references to “Pricilla”.)

48.     The Visa Applicant said that his original protection visa application was made by the First Migration Agent.  It was put to him that if there were contentions in it relating to his Christianity, they would have made up by her.  His answer was that that part was true.

49.     This is a convenient juncture at which to note that:

(a)There were never two protection visa applications.  There was a protection visa application lodged on 1 July 1999 and which appears at S1 p1 and following pages.  Question 35 asks the name of the country from which he sought protection and his answer was Singapore.  Question 36 asks why he left that country and his answer was “Most important fact.  I want to change my life.  Because in Singapore I cannot have a job that I want.  I have further document to you soon”.  Question 37 asks what he feared would happen to him if he went back to that country and his answer was “If I go back to Singapore I would be persecuted”.

(b)In respect of the protection visa application the First Migration Agent was appointed to act, see ST1 p24.

(c)There was never a second protection visa application.  In respect of the original refusal, review of that refusal by the RRT was sought and it would seem, having regard to ST7 p38, that review was sought by the Visa Applicant in his Singapore name.  ST7 p38 is the first page of a letter addressed to Mr Chin Lee Poh by the RRT.

(d)ST9 pp47-48 form part of the RRT’s decision; I refer in this context to the paragraph at the foot of ST9 p47 and ending at the top of ST9 p48 reading as follows:

…

On 23 March 2000, the applicant's adviser wrote to the Tribunal enclosing a statement from the applicant, and a Chinese Identification document.  In the statement, the applicant says that he is in fact from Fujian province in the People’s Republic of China (PRC) and that he came to Australia on false documents.  The applicant says that he has been deeply involved in religious activities not tolerated by the PRC; that he has been pursued by the Public Security Bureau (PSB) because of this and that he was unable to leave the PRC legally.

…

(e)In the same context, the second-last paragraph on ST9 p48 reads as follows:

…

The Tribunal wrote to the applicant on 20 August 2001, in accordance with s424a of the Migration Act, putting to the applicant that he had not put forward any of the claims made to the Tribunal in his letter of 18 March 2000 before that date.  The letter was faxed to the applicant’s adviser as authorised recipient.  The applicant was asked to provide comment on why he had failed to put forward these claims when he lodged his Protection Visa application with the Department.

…

(f)The RRT in affirming the refusal of a protection visa issued a decision which appears at ST9 p44 and following pages.  In that decision, the Visa Applicant is referred to as Chin Lee Poh (aka Jian Ming Lin).

(g)Although the original protection visa application does not appear to have alleged a fear of persecution on the grounds of the Visa Applicants alleged Christianity, this aspect was raised before the RRT.  I include in this context ST9 pp55-56 reading as follows:

…

The Tribunal does not accept that the applicant is Christian, or has had any involvement in a Christian church in China, whether registered or not.  It does not accept that the applicant was involved in any of the activities related to Christianity with which he claimed to be involved, including the organising of Bible study groups, of an underground church, and of promotional materials for Christianity.  The applicant was unable to answer any questions about Christianity, or the teachings of the Church he claimed to attend.  The applicant, when asked at the Tribunal hearing why he was unable to make any reply to a question about the life of Christ, claimed that because he was illiterate he did not know any of this kind of information.  Nevertheless, according to his claims, he had attended church and listened to Bible readings and various preachers since he was a child.  It is implausible that even an illiterate person would remember nothing about Christ, Christianity, or his Church, if he had been involved with Christianity in the way he has claimed.  Although the applicant has provided to the Tribunal a letter from the parish priest of an Anglican church in Sydney which serves migrants of mainland China, there are no details of the applicant's religious situation in the letter, beyond the fact that he has attended the church as a member of that congregation.  There is no indication in the letter as to when the applicant began attending the church.  The Tribunal is not satisfied that this letter is evidence that the applicant is a Christian, or that he underwent the experiences he claimed as a religious dissident in China.

The applicant has claimed to have been arrested and detained for various periods of time, most seriously he was detained for a year in a labour camp in 1996-97.  The Tribunal does not accept that the applicant was detained as he claims.  He was unable to provide any concrete information about his periods in detention.  Even if he was detained by the authorities, however, the Tribunal does not accept that the reason for his detention was his involvement in underground Church activities.  As noted above, the Tribunal does not accept that the Tribunal had any involvement with Christianity in China.  The applicant has provided no other reason for his claimed arrests and detentions apart from his Christianity.  He has said in his evidence that even though all the members of his family, including his sister, brother, wife and children are Christians, none of them has ever been arrested.  The Tribunal is therefore not able to be satisfied that if the applicant were in fact detained by the Chinese authorities, any such detention was for a Convention reason.

The Tribunal has considered whether there is a real chance that the applicant will be subjected to Convention-based persecution if he returns to China in the' foreseeable future.  Given that the applicant has put forward no reason, other than his religion, for being persecuted by the authorities, and the Tribunal is not satisfied that the applicant has had any involvement in Christianity, the Tribunal is unable to be satisfied on the available evidence that the applicant risks persecution for his religion if he returns to China.  Since the applicant has put forward no evidence of any other Convention reason which might motivate his persecution in China, the Tribunal is not satisfied that there is a real chance that he will suffer Convention-based persecution.  It is therefore not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

50.     The Visa Applicant agreed that he obtained a passport in Singapore in his Singapore name.  When asked how he obtained it, he said that a friend (Zheng Tian Hua) obtained it for him and that he did not have to pay anything at all for it.  That friend was subsequently killed in an accident.

51.     The Visa Applicant was asked whether he knew that the passport was fraudulent.  His answer was that “I didn’t understand whether it was false or not”.

52.     It was put to the Visa Applicant that it was issued in a name and nationality other than his own.  He answered, “This is why I did another application because I knew I could not use a false name”.

53.     The Visa Applicant was asked whether he told the First Migration Agent his name.  He said that he did not but that he gave her his passport and that she (the First Migration Agent) brought the application in his false name for this reason.  He agreed that the First Migration Agent did speak Mandarin.

54.     It was put to the Visa Applicant that ST1 p23 indicates that it was signed in the Singapore name.  He said, “It was not written by me”.  He then went on to say, “It is my signature; she asked me to sign Poh Chin Lee so I did so”.  When asked whether he ever told the First Migration Agent his name, he said that he did, but she said that he must use his Singapore name.

55.     The Visa Applicant said that he spoke of his being Christian only when he applied for the second time and that this occurred several months after the first protection visa application.

56.     When asked whether he remembered attending a hearing, he said that he did and that the hearing took place in 2002; (ST9 p47 indicates that the hearing took place, in 2001).

57.     When the Visa Applicant was asked whether he told the RRT that he was a Christian, his answer was “Don’t mention this on the phone; it is not safe”.  He said also that he showed the RRT member the false passport and that it was then returned to him.

58.     The Visa Applicant was reminded that earlier in the day, he had said that clause 6 of Exhibit A5 “may be true” and was asked what he meant by that statement.  His answer was “I don’t understand English”.

59.     The Visa Applicant agreed that he knew that the RRT decision was that the visa had been refused.  He said, “Yes, I was told so and it struck me that I had more opportunities to appeal”.

60.     The Visa Applicant did not remember what amounts he paid to either the First Migration Agent or the Second Migration Agent, but he had brought, so he said, several thousands of US dollars with him to Australia; (the source of that money was never explained).

61.     The Visa Applicant said that he is a skilful construction worker.  When asked whether while in Australia he sent money to China for the support of his children, his answer was, “There is money in the family”.  As to money for his wife, the Applicant, he said that he left money for her when he departed Australia (about $10,000) and he gave her money on each occasion when she visited China.  However, he did not say that he ever sent her money in Australia; (the Applicant had said that she did receive some money from him periodically).

62.     As to his working in Australia, the Visa Applicant agreed that he worked on a full-time basis for a considerable time but only while he was permitted to work.  When he was no longer permitted to work, he worked but on a part-time basis.

63.     When asked whether the Second Migration Agent explained why the RRT refused a protection visa, he said that he knew that the RRT did not believe that he was a Christian.

64.     The Visa Applicant was referred to clause 4 of Exhibit A5 (at paragraph 42 above) which sets out that he told the First Migration Agent that he was a Christian; the original protection visa application does not contain any reference to this aspect.

65. The Visa Applicant was asked whether he recalled that in December 2003 an application was made to the Minister. The Visa Applicant’s response was that, “I applied for this visa in September 2003 and I applied on 1 September 2003 to register our marriage” (the Tribunal here notes that an application under s 417 of the Act was made at or about that time by the Second Migration Agent).

66.     The Visa Applicant was asked whether he recalled asking the Second Migration Agent in late 2003 to put in an application permitting him to stay in Australia.  His answer was, “I hope I can stay in Australia to look after my mother-in-law.  She needs both of us”.

67.     The Visa Applicant said that he recalled attending on the Second Migration Agent in 2003 but did not remember how often.  He said that before the marriage, the Second Migration Agent was consulted.  But when he was asked whether he realised that his presence in Australia was illegal, he said, “I thought I could still appeal”.

68.     The Visa Applicant repeated (after a brief telephonic interruption) that he was in Australia legally pending a further appeal.  But when asked whether he instructed anyone to lodge an appeal, he answered that he had not.  He went on to say that, “My migration agent said you have been refused and you can appeal now or later and I decided to do it later”.

69.     The Visa Applicant said (as to his status in Australia) that at the time when he met the Applicant, they discussed the matter and decided on an application.  When asked whether the Applicant knew that he was in Australia illegally, he said that he did not talk to her about the issue.

70.     The Visa Applicant denied that the marriage was arranged.  He did say that they agreed to marry before consulting a migration agent.

71.     It was put to the Visa Applicant that when he and the Applicant consulted the migration agent, they knew he could not stay in Australia; he said that, “I consulted the migration agent as to whether we can register the marriage”.

72.     The Visa Applicant denied that he married in order to improve his prospects of being able to stay in Australia.  He also denied that he ever told her (the Applicant) of his false passport.  Nor, so he said, did he tell her of his protection visa application.  He said that he and the Applicant talked only of their families and never about their past lives before they met.

73.     As to why Australia was selected as the country to be entered (illegally), he said that everyone wants to come to Australia.

74.     The Visa Applicant was next asked about the wedding on 1 September 2003 and in particular where he and the Applicant went for this purpose.  He said that they were in Sydney doing the legal procedure and that he filled in a form with the migration agent.  When asked whether there was a party, he said that rings were exchanged.

75.     The Visa Applicant was asked whether when the marriage took place, he produced his passport.  He said that they needed their passports in order to get married.  However, he did not use the false passport for this purpose; he used a genuine a travel document in his own name.  He did not take the false passport to the Registry and he denied that the Applicant ever saw it.  He said also that he did not remember any questions by her, the Applicant, about the passport (the Tribunal notes that this evidence in particular is contradicted by that of the Applicant).

76.     The Visa Applicant contended that he was allowed to work in Australia and that he was given a work permit.  Referred to clause 10 of Exhibit A5 (at paragraph 42 above,) he said, “I knew I didn’t have permission to work.  I have to look after mother and daughter”.

77.     The Visa Applicant agreed that he had said in examination-in-chief that Exhibit A5 was correct and in particular that clause 10 was correct.  It was put to him that he was now saying something different.  His answer was, “At the beginning I did not know this but later I did”.

78.     The Visa Applicant was asked whether he worked knowing that he was not permitted to do so.  His answer was that he did so in order to survive.

79.     The Visa Applicant was then examined as to his spouse visa application, and in particular question 82 which enquires as to whether he was ever given permission to work in Australia.  He was referred also to his answer in which he said in his application that he had permission to work from 1 June 1999 to 2002.

80.     The Visa Applicant was next referred to clause 16 of Exhibit A5 (paragraph 42 above,) in which he said that he left Australia voluntarily to “save the Australian taxpayer and to comply with the Australian migration system”.  The Visa Applicant agreed that he departed Australia in 2005 and he agreed that he left more than three years after his protection visa application was denied.  As to exactly when his protection visa application was denied, his answer was that he could not remember.

81.     The Visa Applicant said that he knew that coming to Australia with a false passport was wrong, but “I corrected it straight away”.  He went on to say that, “I only worked one or two days a week”.

82.     The Visa Applicant said also that he joined the Red Cross in June 2006 but denied that he did so in order to enhance his prospects in this application.

PART E - analysis of the evidence and the character test

83.     The Visa Applicant in particular was often evasive and often answered questions in a manner which did not relate to the questions.  His evidence was most unsatisfactory and little credit can be given to it.  It will be noted that the Visa Applicant often sought to attribute acts or statements, sometimes bizarre, to one or other of the migration agents.  Although inappropriate behaviour by migration agents is by no means unknown, I do not intend without hearing from them to make any findings against the migration agents.  It must be noted that neither of the migration agents was called by the Applicant, and the Respondent might see fit to investigate some of these aspects further.

84.     The Applicant’s evidence also was in a number of respects unsatisfactory.  As to what happened at or about the time of the wedding is, in accordance with her evidence, so different from that of the Visa Applicant that it is not possible to make sense of either versions.

85. The Visa Applicant has undoubtedly committed numerous breaches of the Act and in particular, breaches of s 234 of the Act and in respect of which the penalties prescribed are severe. Section 236 of the Act is also relevant in the context of the use of the false passport. The conduct of the Visa Applicant must be treated as very serious indeed; put succinctly the Visa Applicant treated Australian migration law as if it did not apply to him. See also in this context clause 2.6 of the Direction referred to in Part F below.

86.     Mr Zipser contended that good character must be judged at this time rather than at the time when the Visa Applicant was in Australia illegally.  Assuming that this was so, there is little or no evidence of good character.  Joining the Red Cross (at a late stage) is hardly material especially when there was no evidence of actual work for the Red Cross.  Mr Zipser contended that the Visa Applicant’s behaviour towards the Applicant's mother, now deceased, was evidence of good conduct.  There was no evidence as to precisely what the Visa Applicant did for the Applicant's mother but there is no reason to doubt his evidence that he was helpful to her while in Australia.

87.     Mr Zipser contended that the fact that the relationship between the Visa Applicant and the Applicant is genuine is significant in this context.  I do not think that this contention is valid.  As to the relationship, I accept that the Applicant is attached to the Visa Applicant but not apparently to the extent that she would leave Australia for him.  The Visa Applicant’s motives may be mixed in that while there is a degree of attachment, there is also a desire to come back to Australia and that this will not be possible except through the Applicant.  The Visa Applicant apparently (if given a visa entitling him to do so), would come back to Australia leaving his children in China; their welfare did not appear to be a matter of concern to him.

88.     In my view, the Visa Applicant cannot pass the character test.

PART F - direction - visa refusal and cancellation under section 501 - no. 21 (“the Direction”)

89.     In this Part F, references to numbered clauses refer to numbered clauses in the Direction.

90.     The primary considerations are set out in clause 2.3 as follows:.

…

PRIMARY CONSIDERATIONS

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.

…

91.     Clause 2.3 must be considered in conjunction with clause 2.5 reading as follows:

…

Protection of the Australian Community

2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a)the seriousness and nature of the conduct;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

…

92.     The fact that if the Visa Applicant is granted a visa will mean that he need not re-offend does not end the matter.  I refer in this context to Re Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, whereDeputy President Wright QC noted at paragraph 33, that:

…

33.In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were 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.

…

93.     As to deterrence, I cite with approval firstly clauses 38 and 39 of the Respondent’s SoFaC reading as follows:

…

General deterrence

38.The respondent  contends that the refusal of the visa will send a clear message to others that conduct of the type engaged in by the visa applicant will not be rewarded. Further, non-citizens can expect to be refused entry or to have their visas refused if they engage in similar conduct. (paragraph 2.11 of the Direction).  See also: Msumba v Department of Immigration and Multicultural Affairs [2000] AATA 87 at [39], Tremlett v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244 at [57] and Gorges v Minister for Immigration and Multicultural Affairs [2002] AATA 89 at [477]; Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156 at 46.

39.In Re Ayaad and MIMA [2000] AATA 935 at paragraph 47, Purvis DP 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. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.

…

94.     It cannot be doubted that the Visa Applicant’s conduct was very serious indeed; see for example, Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 and Re Hobbins and Minister for Immigration and Multicultural Affairs [2006] AATA 279.

95.     As to the expectations of the Australian community, see Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575 where Deputy President McMahon says at paragraph 26 as follows:

…

26.As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled.  ….

96.     Deputy President Walker said in Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1331 at [66]:

…

66.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.  …

…

97.     To deny a visa to the Visa Applicant will cause hardship to the Applicant but it must be remembered that the Applicant has made it clear that she would not leave Australia to be reunited with her husband.  She rejected China and Cambodia as possible places where they could be together.  But, there are other countries.  Hong Kong and Singapore spring to mind as examples.  The Visa Applicant is a skilled building worker according to his evidence while the Applicant speaks three languages and has experience as a bank accountant.  I hold as a matter of fact that she knew before she married the Visa Applicant that he was illegally in Australia.  Put in other words, there is a clear question of choice and the Applicant has, perhaps understandably enough, chosen Australia where she receives  support in the form of Centrelink payments.

98.     In any event, the hardship factor does not come close to outweighing the factors which point in the other direction.  In all the circumstances, to exercise the discretion in favour of the Visa Applicant in this case, would be improper and would run counter to numerous cases over the years where in similar fact situations, visas have been denied.

99.     In the circumstances, the decision under review must be affirmed.

I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President

Signed:   ............[sgd]................................................................
               Niamh Kinchin, Associate

Dates of Hearing:  28 and 29 November 2007
Date of Decision:  11 December 2007

Solicitor for the Applicant:         E.K. Lawyers

Counsel for the Applicant:        Mr B. Zipser

Solicitor for the Respondent:     Mr Julian Pinder, DLA Phillips Fox