Li and Minister for Immigration and Citizenship
[2008] AATA 147
•26 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 147
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/10
GENERAL ADMINISTRATIVE DIVISION ) Re JIE LI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr PW Taylor SC, Senior Member Date 26 February 2008
PlaceSydney
Decision The decision under review is set aside and the application is remitted to the decision-maker for reconsideration with a Direction that the visas sought not be refused pursuant to section 501 of the Migration Act 1958. ................[sgd]..............................
Mr PW Taylor SC
Senior Member
CATCHWORDS
MIGRATION – refusal to grant spouse visa – refusal on basis of visa applicant knowingly providing false information in relation to previous visa applications and remained in Australia without a valid visa – real basis for business visa application was not disclosed – protection visa application based on a false claim of fear of persecution as a Falun Gong practitioner – visa applicant does not satisfy character test – discretion – primary and other considerations – best interests of Australian citizen child and wife favour grant of visa – decision under review is set aside and the application is remitted to the decision-maker for reconsideration with a direction that the visas sought not be refused pursuant to section 501 of the Migration Act 1958
Migration Act 1958 – section 501
Direction – Visa Refusal and Cancellation under Section 501 – No. 21
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997)
Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Issa and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421
Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625
Re Pham and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1108
Re Ha and Minister for Immigration and Multicultural Affairs [2000] AATA 896
Re Tremlett and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244
Re Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156
Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Re Hobbins and Minister for Immigration and Multicultural Affairs [2006] AATA 279
Re Grech and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 22
Re Xiang and Minister for Immigration and Citizenship [2008] AATA 23
Re Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107
Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Re May and Minister of Immigration and Multicultural Affairs [2000] AATA 480
Re Barattini and Minister for Immigration Multicultural and Indigenous Affairs [2005] AATA 157
Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1331
Re Howard and Minister for Immigration and Multicultural Affairs (2006) 91 ALD 250
Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re McKay and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 861
Kaur v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 70
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Re Fanchon and Minister for Immigration and Citizenship [2008] AATA 20
Smith v New South Wales Bar Association (1992) 176 CLR 256
REASONS FOR DECISION
26 February 2008 Mr PW Taylor SC, Senior Member 1.In September 2005 Sun Jia Ping returned to the People’s Republic of China and, sponsored by his recently married Australian wife, Li Jie, applied to migrate to Australia. The Minister’s delegate rejected his spouse visa applications. The delegate found that Mr Sun had knowingly provided false information in previous visa applications. The delegate considered that Mr Sun’s conduct in relation to the false information was serious and prolonged. He found Mr Sun was not of good character, and was not satisfied Mr Sun passed the character test in subsection 501(6) of the Migration Act 1958. The seriousness of Mr Sun’s conduct outweighed any disadvantage that refusal of the migration application might cause to Mr Sun, Ms Li or to their infant daughter, Sun Yu Xin.
2.The conduct the delegate regarded as serious and prolonged involved five specific matters. These were that Mr Sun had:
(a)in June 2001 applied for a long-stay business visa asserting sponsorship by a company that was not connected with the actual reasons for the application;
(b)in October 2002 lodged a protection visa application falsely claiming to be a Falun Gong practitioner;
(c)in November 2002 applied to the Refugee Review Tribunal, on the same false basis, for review of the decision refusing his protection visa application;
(d)in May 2004 pursued, on the same false basis, an application for Ministerial intervention under section 417 of the Migration Act 1958; and
(e)deliberately remained in Australia after having become an unlawful non-citizen during three periods: (i) September and October 2002, (ii) from December 2003 to March 2004 and (iii) after June 2005 until August 2005.
3.Mr Sun does not dispute that his June 2001 business visa application and his October 2002 protection visa application each contained incorrect information. But he says the application forms were in English, and he does not speak, read or write English. He retained a registered migration agent to make each application. He relied on the competence and honesty of the agent in submitting the visa applications and their supporting information. He believed the applications were properly and accurately prepared. Mr Sun denies he sought Ministerial intervention on a false basis. He says he promptly and successfully applied for bridging visa extensions as soon as he became aware any visa had expired.
Mr Sun’s Australian visa history
4.It is difficult to extract from the available records a completely accurate summary of the details of Mr Sun’s immigration history. Some obviously relevant documents had not been located, either when the Minister first complied with section 37 of the Administrative Appeals Tribunal Act 1975 or by the time the review hearing commenced. Despite an adjournment of the review proceedings, some documents still have not been located. These include documents supposed to have been attached to Mr Sun’s 12 May 2004 letter seeking Ministerial intervention. Some documents are not legible. Perhaps because of these deficiencies the dates of some decisions and the contents of some applications appear to have been misdescribed in the delegate’s statement of reasons for refusal of Mr Sun’s application. Both for those reasons, and the grounds on which the application has been refused, it is useful to outline the period of Mr Sun’s residence in Australia and the nature of the visa applications and entitlements he made or held during that period. This is conveniently done in the following table.
Summary of Sun Jia Ping’s Australian visa applications and entitlements
Date Type Event Start End 3.4.01 Tourist Visa application 27.4.01 19.6.01 Tourist visa (Class TR subclass 676) 19.5.01 Sun Jia Ping first arrived in Australia 19.6.01 Long stay temporary business visa (Subclass 457) application 19.6.01 26.7.01 Bridging Visa A (in association with Subclass 457 visa application) 26.7.01 12.9.02 Bridging Visa B (permitted to remain until 28 days after notification of decision on subclass 457 visa application) – Condition 8101: no work 29.7.01 Sun Jia Ping returned to China 5.9.01 Sun Jia Ping returned to Australia from China 5.8.02 Business Long Stay Visa refused 12.9.02 10.10.02 No visa held 10.10.02 Protection Visa application 10.10.02 22.12.03 Bridging Visa C (permitted to remain until 28 days after notification of decision on protection visa application) - Condition 8101: no work 25.10.02 Protection visa application refused 19.11.02 Review application to Refugee Review Tribunal 13.11.03 Refugee Review Tribunal affirms protection visa refusal 23.12.03 29.3.04 No visa held 24.3.04 Application for Ministerial intervention 30.3.04 2.9.05 Bridging Visa E (various visas issued) - relates to application for Ministerial intervention) - Condition 8101: no work 16.6.05 Ministerial intervention refused 2.9.05 Sun Jia Ping returned to China 19.9.05 Migration visa application lodged in Shanghai Remaining in Australia after having become an unlawful non-citizen
5.The summary in the preceding table indicates that there were only two periods when Mr Sun remained in Australia without a current visa. The bridging visa granted to Mr Sun on 26 July 2001 was expressed to expire 28 days after notification of the decision on his long stay temporary business visa application. That application was refused on 5 August 2002, and the visa accordingly expired on about 12 September 2002. There was a gap of about a month before Mr Sun was granted a further bridging visa on 10 October 2002, in connection with his protection visa application.
6.The 10 October 2002 bridging visa was also expressed to expire 28 days after notification of the decision on the protection visa application. That application was ultimately rejected in the Refugee Review Tribunal’s 13 November 2003 decision. Accordingly the bridging visa expired on about 23 December 2003. For a period of about three months thereafter Mr Sun had no current visa, until he was granted a further bridging visa on 29 March 2004, in connection with his application for Ministerial intervention.
7.In relation to each of these periods, Mr Sun says that he was not notified of the visa rejection decision. He claims he did not know about the refusal of his business visa application until late September 2002. He did not discover the initial rejection of the protection visa application, Refugee Review Tribunal proceedings, or the ultimate refusal of his visa application in November 2003, until March 2004.
8.Mr Sun’s migration agent was certainly notified of the rejection of Mr Sun’s business visa application. Nevertheless Mr Sun says the agent did not tell him, because he claimed not to have been paid. For reasons I state later, I am sceptical of, and do not accept, this claim. But I consider the short overstay period involved has little independent significance. Mr Sun was lawfully in Australia after 10 October 2002 because of the bridging visa he was granted in connection with his protection visa application. The circumstances in which that application was made, and pursued, are the matters of principal significance.
9.Mr Sun’s migration agent appears not to have been notified of the Refugee Review Tribunal’s November 2003 rejection of Mr Sun’s protection visa application. Notices relating to the decision were sent to the agent by registered post on 23 October 2003 and 15 November 2003. Both notices were returned undelivered. Taken in isolation, the return of these notices supports Mr Sun’s claim that he did not know his protection visa application had been refused. But the consequential overstay period was again relatively short, and its ultimate significance really depends on the extent of Mr Sun’s knowledge of, and responsibility for, the protection visa application itself.
The 19 June 2001 long stay business visa application
10.Mr Sun’s May 2001 tourist visa entry was for the purpose of a holiday. He says his return airfares were met by his employer, as a reward for good performance. In Australia, he stayed at a friend’s house in Mosman. There he met a Mr Zong. Mr Zong revealed that he was interested in acquiring a deer farming venture at Goulburn, New South Wales. Mr Sun says that Mr Zong offered him the opportunity to invest $300,000 in the deer farm business. After some initial investigation, including inspections of the Goulburn property, Mr Sun decided to invest. He, and his then wife, had saved about AUD$80,000. He planned to borrow the remaining AUD$220,000 from family and friends.
11.Mr Sun says Mr Zong encouraged him to remain in Australia while they organised the purchase of the deer farm. Mr Sun agreed, apparently despite the fact that remaining in Australia would mean abandoning his job in China. He says Mr Zong told him that if he was going to invest he could get a working visa. Mr Zong introduced Mr Sun to Mr Liang Li Xin. Mr Liang was a migration agent and friend of Mr Zong. Mr Sun, Mr Zong, and Mr Zong’s wife, Tang Xia Ping, all went to see Mr Liang at his office.
12.Mr Sun was the only person who gave evidence about the meeting with Mr Liang. He gave three brief partial accounts. These were contained in (i) a 5 October 2006 letter by his migration agent, (ii) his 15 June 2007 statement and (iii) his 20 November 2007 statement. The 5 October 2006 letter was written in response to the Department’s notice inviting comment on grounds for possible refusal of the spouse visa applications. It contained what purported to be English translations of Mr Sun’s actual comments in response to the grounds raised by the Department. The 20 November 2007 statement was written after the Department had made available a copy of the 19 June 2001 business visa application.
13.In the 5 October 2006 letter, Mr Sun said Mr Liang told him he could apply for a working visa on Mr Sun’s behalf. Mr Sun says that Mr Liang charged him $5,000. (He says he saw Ms Tang give Mr Liang a cheque for that amount. Mr Sun reimbursed her by transferring money into her daughter’s bank account from his savings in China.) Mr Liang said he could have Yiyijiu Biology Engineering Australia Pty Ltd sponsor Mr Sun for the purpose of the application; Mr Sun left everything in Mr Liang’s hands. Mr Sun said much the same thing in his 15 June 2007 statement. He added that he was told that he only needed a sponsor until the deer farm purchase was completed. Mr Sun claimed he did not know what the sponsor did, but accepted that he did not ask enough questions at the time. In his 20 November 2007 statement Mr Sun says that Mr Liang said he would get everything done. He claims Mr Liang made up false information in the application about Mr Sun’s tertiary qualifications, high school and recent employment.
14.A copy of Mr Sun’s 19 June 2001 long stay business visa application was provided to the Tribunal after an initial adjournment of the review proceedings. The application form was signed by Mr Sun on 15 June 2001. It contains personal information that could only have come from him. This information includes (i) his date of birth, (ii) his Mosman address, (iii) his then wife’s name, (iv) his son’s name and date of birth, (v) the date of his tourist visa application and (vi) his employer’s name and address.
15.The presence of these details in the application demonstrate that the conversation with Mr Liang about the application was more extensive than Mr Sun’s brief accounts might otherwise suggest. But even his account suggests that the application was not complete, nor were the details of the contents read to him, at the time. These inferences are rather compelled by the fact that there are some obvious errors in other parts of the application. For example, (i) Mr Sun’s then wife’s date of birth was absurdly mis-stated, (ii) neither the passport number nor the passport expiry date recorded in the application matched Mr Sun’s Chinese passport details, (iii) Mr Sun’s current visa number was correctly stated, but the visa was described as class “uc” – which is a Temporary Business Entry visa, rather than the tourist visa (class TR) that he actually held. These errors were probably inadvertent and are otherwise inexplicable. (The mis-statement of Mr Sun’s passport and current visa could not hope to escape detection because his passport would have to be presented to be endorsed with the new visa.)
16.The existence of these errors in the application suggests that it was prepared and submitted in haste. The likely correctness of that impression is enhanced by the circumstances that (i) the application was signed by Mr Sun on Friday 15 June 2001, (ii) the application was lodged on Tuesday 19 June 2001, (iii) Mr Sun’s current tourist expired on 19 June 2001 and (iv) the application stated that the new visa was required by 20 June 2001. It is further reinforced by the fact that the copy of the application appears not to be complete. Many documents described as attachments, and other forms described elsewhere as having accompanied the application, were not located by the Department and produced to the Tribunal. These missing documents included:
(a)A statement of Mr Sun’s previous business experience and expertise;
(b)A statement detailing the business proposed to be established in Australia and Mr Sun’s function in relation to that business;
(c)A copy of a nomination approval letter from Mr Sun’s sponsor;
(d)A Form 1067 application for business sponsorship; and
(e)A Form 1068 application for nomination by a business sponsor.
17.These missing documents relate to sections A to E of the application form. These sections appeared in the standard form as mutually exclusive alternatives and visa applicants were directed to complete only the particular section that applies to their actual circumstances. Section A applied where the applicant was sponsored by an Australian business, or by an overseas business with contractual obligations to be fulfilled in Australia. Section B applied to an applicant who was an executive of a foreign business that was establishing a business activity in Australia. Section C applied to an applicant who was “an independent executive”. Despite these different descriptions, and the instructions in the form itself, the completed form lodged on Mr Sun’s behalf answered all of the questions in Sections A, B and C and purported to include supporting attachments. There is an obviously available inference that the person who prepared and submitted the application did not know the actual basis on which the application was to be pursued.
18.The content and timing of the 19 June 2001 application form certainly suggest that the application was not complete, at least in the sense that it did not include its purported attachments, when Mr Sun signed the application form on 15 June 2001. That conclusion is consistent with Mr Sun’s evidence about Yiyijiu Biology Engineering Australia Pty Ltd. Although that company is not actually referred to in the completed Form 1066 lodged on 19 June 2001, it apparently sponsored, or at least applied to sponsor, Mr Sun’s application. (The doubt arises because the primary documents have not been found and there are inconsistent statements elsewhere that (i) the company withdrew its sponsorship and (ii) that the company’s sponsorship application was refused.)
19.In the 5 October 2006 letter Mr Sun says Mr Liang told him that he could arrange for Yiyijiu Biology Engineering Australia Pty Ltd to sponsor him for the purpose of the application. But Mr Sun gave evidence at the hearing that Mr Liang did not tell him the company name at the meeting. He also said it was actually Mr Zong who first told him he would need to have an employer to sponsor him. Mr Sun claimed he did not really understand the role of the sponsor company. But it emerged in the course of Mr Sun’s telephone evidence to the Tribunal that, in critical parts of his 15 July 2007 statement, Mr Sun had used the Mandarin word “employer” – in apparent distinction from the different Mandarin word for “sponsor”. After this distinction between the two Mandarin words was explained by the interpreter, Mr Sun was specifically challenged with the suggestion that Mr Liang told him he would have to have an employer to support his business visa application. Mr Sun’s answer to that suggestion was that he did not even know what an “employer” was. The suggestion is implausible and was later contradicted by his own evidence that Mr Zong told him he needed to have “an employer to sponsor him”. Mr Sun said he was told he would have to pay money to the proposed sponsor. He believed that at least part of the $5,000 was to be paid to the sponsor – though he claimed he did not realise there was anything wrong or irregular about this.
20.The fact that Mr Zong first raised the sponsorship question, together with the fact that Ms Tang went to the first meeting with Mr Liang and gave him her cheque, rather suggests that Mr Sun and Mr Zong had probably discussed the sponsorship requirement before they went to see Mr Liang. But both that discussion, and the proposed payment to the sponsor, as well as the subsequent meeting with Mr Liang must have conveyed to Mr Sun that, in his circumstances, valid employment was a requirement for the grant of a business visa application. It must also have conveyed to him that his own proposed participation in the deer farming venture was not itself sufficient to justify the grant of a business visa. Both of these conclusions become apparent after a moment’s reflection. The sponsorship requirement exists for the purpose of providing satisfaction that the applicant has real functions to perform and will be able to support themselves during their visa period. At the time Mr Sun made this application, the deer farming venture was no more than a possibility he was still investigating. He had no experience relevant to the proposed venture, he had not committed himself to it and neither did he have available the funds that the investment contemplated.
21.According to the available documents, the deer farming venture was never disclosed as the real basis for Mr Sun’s business visa application. Once that non-disclosure is accepted, the integrity of Mr Sun’s conduct in making and pursuing that application depends on his evidence that he believed the sponsoring arrangement proffered by Mr Liang was a permissible arrangement to leave Mr Liang to make. In particular, it depends on accepting the conclusion that the proposed sponsorship relevantly satisfied the application requirements, even though it was intended to operate, if at all, only until completion of the deer farm purchase, and was not the real purpose of the visa application.
22.The difficulty in accepting this conclusion is that there is not the slightest evidence the proposed sponsorship, which Mr Sun appears to have understood involved some kind of employment relationship, was ever intended to be real. Mr Sun had no contact with the company, nor is there any evidence he discussed with Mr Liang the supposed substance of the proposal. The clear implication from Mr Sun’s evidence is that the proposed “sponsorship” was not an arrangement that was ever intended to have any objective reality. It was entirely a matter for Mr Liang to arrange and present for the purpose of the business visa application.
23.Mr Sun was neither literate in English nor sufficiently familiar with Australian migration requirements to act on his own behalf. He was necessarily reliant on someone such as Mr Liang. To an extent, this kind of reliance is unremarkable and inevitable. But it does not require acceptance of claims that such a visa applicant was completely ignorant of errors in the application, or that they merely, and uncritically, accepted whatever advice they were given.
24.The sponsorship discussions, Mr Sun ultimately conceded occurred, reveal he knew the business visa application was going to be put forward on a basis that did not truly and accurately reflect his real purpose in making the application – namely, the pursuit of the deer farm venture. That conclusion is implicit in the discussion about sponsorship – because it involved a company that was unknown to Mr Sun, and because he did not envisage that it would actually provide him with any work. It is also consistent with his subsequent conduct. By May 2002, Mr Sun abandoned interest in the deer farm venture. But when he withdrew from the proposed venture, there is nothing to suggest he conveyed this significant change of circumstances to the Department. Instead, he simply awaited the outcome of his business visa application.
25.I do not accept that Mr Sun believed a business visa application made on this basis of a paid, and supposedly interim, sponsorship that Mr Liang was to arrange was either accurate or permissible. In his telephone evidence to the Tribunal, Mr Sun said he understood that sponsorship was “just part of the procedure” to get a visa. Such a belief would reduce the sponsorship requirement to a mere matter of form. It would involve “sponsorship” being no more than an appearance arranged by migration agents, and presented merely for the purpose of appearing to satisfy the formalities of migration requirements. It would have no bearing on the relational realities those requirements were intended to ensure existed. Immigration sponsorship requirements, particularly in relation to matters of business sponsorship are not, and could not be understood by any reasonable person, to involve matters of mere formality or appearance.
26.Against this background, I return to the fact that the 19 June 2001 visa application contains three further erroneous statements - that Mr Sun had:
(a)obtained a High School certificate from Shanghai High School;
(b)been granted a Bachelor degree in International Business and Trade from Shandong Industry University in 1987; and
(c)been the general manager of the Shanghai Kangaroos Health Nutriment Co Ltd for the last 3 years.
27.In his 15 June 2007 statement Mr Sun stated that he obtained all of his schooling at Jinan, and had no tertiary qualifications of any kind. He also said that from 1987 until May 2001 he had been employed by the Shandong Salian Construction Engineering Company. Neither the error in the tertiary qualifications claim nor the recent employment claim could be inadvertent. Nor is it likely that misunderstanding or miscommunication between Mr Sun and Mr Liang readily account for them.
28.Both the false claim to tertiary qualifications, and the false claim to have been the general manager of Shanghai Kangaroos Health Nutriment Co Ltd, apparently enhanced the credibility of the business visa application. Given their apparent relevance to the application, they may be presumed to have been deliberately made. The effect of Mr Sun’s evidence to the Tribunal is that he was not the source of this erroneous information, it was solely the result of Mr Liang’s unprompted deliberate dishonesty, and Mr Sun was not aware it was included in the application.
29.It is difficult to accept that the two false claims of that kind were merely the result of Mr Liang’s unprompted and unwanted dishonesty. It is more likely, sponsorship having been identified to Mr Sun as a fundamental requirement of the business visa application, and Yiyijiu Biology Engineering Australia Pty Ltd probably having been discussed between Mr Sun and Mr Liang as the proposed sponsor, that the false claims were included in the application form to enhance the credibility of the proposal. It is also inherently likely that these claims were discussed with Mr Sun before he signed the application on 15 June 2001. The inclusion of the false claims certainly encourages the conclusion that the proposed sponsorship arrangement was not genuinely intended, and that the application was being presented on a false and misleading basis. That fact, I find, Mr Sun well knew.
The October 2002 protection visa application
30.On 9 October 2002 Mr Sun signed a protection visa application. Mr Liang lodged it with the Department on 10 October 2002. The protection visa application was refused on 25 October 2002. Mr Liang lodged a review application with the Refugee Review Tribunal on 19 November 2002. On 13 November 2003 the Refugee Review Tribunal published its decision affirming rejection of the protection visa application.
31.The protection visa application was based on claims that Mr Sun (i) became a Falun Gong practitioner during his first visit to Australia in June 2001, (ii) left China in September 2001 because he feared persecution and (iii) feared returning to China because, as a Falun Gong practitioner, he faced persecution.
32.Mr Sun’s evidence in these proceedings contradicted each of these claims. He said in his 15 June 2007 statement that the purpose of his return to China in July-September 2001 was to visit his then wife and arrange to borrow money for the proposed deer farm investment. He returned to Australia in September 2001 to pursue that investment, not because of any fear of persecution. He had never been a Falun Gong practitioner. His disavowal of these claims characterises the protection visa application as completely specious.
33.Mr Sun claims he did not know the application he signed on 9 October 2002 was for a protection visa, and this claim implies ignorance that it was based on a false claim of fear of persecution as a Falun Gong practitioner. Neither had he signed the review application to the Refugee Review Tribunal. He knew nothing about the Refugee Review Tribunal proceedings. He did not discover these matters until March 2004 when, as a result of Mr Liang’s prolonged absence in China, he engaged another migration agent, who made enquiries of the Department.
34.Mr Sun’s claimed ignorance of the nature of the protection visa application merits both careful and sceptical consideration. This is because it is a potentially exculpatory, but uncorroborated, claim that attributes all blame to the absent agent, Mr Liang. Consideration of the claim begins with the circumstances in which the application was made.
35.The long stay temporary business visa application Mr Sun lodged on 19 June 2001 was refused on 5 August 2002. There was no explanation – perhaps because of the missing documents to which I referred earlier – as to why the decision took so long. Mr Sun’s evidence was that he had no contact between himself and Mr Liang in that period, except perhaps in connection with the new bridging visa he obtained on 26 July 2001. Mr Sun claims he did not find out about the visa refusal until late September 2002. At Ms Li’s birthday party on 28 September 2002, someone had asked Mr Sun how his visa application was going. That prompted him to go and see Mr Liang the following day.
36.Mr Liang told him the application had already been refused. Mr Sun says he asked Mr Liang why he had not told him earlier about the refusal of the application. He claims Mr Liang complained he had not been paid for the application and did not consider he had an obligation to tell Mr Sun anything about the result of the application. According to the comments attributed to Mr Sun in the 5 October 2006 explanation letter to the Department, Mr Liang also told him that the time for appeal against the refusal of the business visa application had already expired.
37.Mr Sun claims that when he saw Mr Liang on 29 September 2002 that was the first time he became aware there was something wrong with his visa status. Ms Li was four months pregnant. Both she and Mr Sun were still legally married to other people. Mr Sun says he was concerned to remain with her in Australia. He says he asked for Mr Liang’s help in getting a visa that would allow him to do so. He paid Mr Liang $300 to make a visa application.
38.There are several reasons to doubt that Mr Liang had any payment complaint against Mr Sun. First of all, despite suspicion of Mr Liang’s involvement with the further bridging visa granted on 26 July 2001, and the fact that a great deal of time had elapsed since the business visa application had been lodged (on 19 June 2001) there is no suggestion of any payment complaint by Mr Liang before Mr Sun’s account of the 29 September 2002 conversation. Second, such a complaint appears inconsistent with Mr Sun’s statements that (i) he was present when Mrs Tang gave Mr Liang a cheque for $5,000, (ii) he later reimbursed Mrs Tang by transferring money from his savings in China into her daughter’s Australian bank account, and (iii) Mr Zong assured him that Ms Tang had paid Mr Liang. Third, the explanation Mr Sun attributes to Mr Liang to resolve that inconsistency – that Mr Liang returned the cheque in exchange for the promise of a substitute – attributes to him a naivety rather inconsistent with the fact that he apparently required payment in advance. According to Mr Sun’s claim, despite not having been paid in advance, Mr Liang nevertheless proceeded to lodge the visa application, and pursue the proposed sponsorship arrangement. Fourth, even if Mr Liang had returned Ms Tang’s cheque, Mr Sun’s own version of the September 2002 conversation attributes to Mr Liang the belief that Mr Sun had actually paid Ms Tang. That belief, in view of Mr Liang’s actions in lodging the application despite non-payment, hardly provides a justification for not telling Mr Sun the result of the application.
39.Finally, it is relevant to take into account some evidence suggesting that Mr Sun regarded Mr Liang as having cheated him in relation to the failure of his business visa application. That evidence is contained in handwritten notes of a telephone conversation on 1 March 2006 between Mr Sun and an officer of the Australian Consulate in Shanghai. There, in response to a question about the result of his long stay business visa application, Mr Sun is recorded as saying that the application had been refused, apparently because Mr Liang had not lodged further documents with the Department, and that Mr Liang had cheated him. As at 1 March 2006 Mr Sun could hardly have regarded Mr Liang as having “cheated” him if, as he claims, four years earlier in September 2002 he genuinely believed Mr Liang’s explanation that he had never been paid for his work on the business visa application.
40.In one sense, scepticism of Mr Sun’s account of Mr Liang’s non-payment claim does not directly contradict Mr Sun’s claim that it was not until 29 September 2002 he discovered his business visa application had failed and his bridging visa had expired. But the non-payment claim highlights an incongruity that lies at the heart of Mr Sun’s claim he did not know the nature and content of the protection visa application. The incongruity is this: on the one hand, non-payment of a $5,000 fee supposedly led Mr Liang to refuse to notify the result of the business visa application. Yet, on the other hand, for a total (not an additional) payment of only $300 Mr Liang prepared, lodged and pursued, without complicity from Mr Sun, a wholly specious protection visa application based on an unfounded claim that Mr Sun had become a Falun Gong practitioner during his initial short stay in Australia.
41.After the 29 September 2002 meeting Mr Sun returned to see Mr Liang, and signed the protection visa application, on 9 October 2002. He signed the application documents in at least three, and probably four places. One signature appears under a declaration (in English) that all the information in the application is correct. That signature appears in support of an affirmative response to a question “Do you have your own claims to be a refugee?”. Another signature appears after a similar, but more extensive declaration (again in English) and has been witnessed by a justice of the peace.
42.Mr Sun agrees that he signed the protection visa application. He also agrees that Mr Liang took him to see a justice of the peace who worked in a nearby chemist shop. In his 15 June 2007 statement Mr Sun described the circumstances as “very official”. He said that the justice of the peace did not speak Mandarin and that he (Mr Sun) relied on Mr Liang to tell him what was in the application. And, in that context, it is worth noting that Mr Liang also signed the “Interpreter’s declaration” included in the application. In that declaration the interpreter declared that they had “faithfully interpreted all contents of this application” – specifically including the applicant’s declarations referred to in the preceding paragraph.
43.The fact of Mr Sun’s conceded knowledge that it was a visa application, together with his repeated signature on the application, culminating with the formality of attested execution in the presence of a justice of the peace, must have conveyed to Mr Sun that he was being required to confirm the accuracy of the contents of the document. That reality virtually demands a conclusion that he must have sought some explanation from Mr Liang about the actual information contained in the application. Indeed, Mr Sun partially concedes the point in his statement that he relied on Mr Liang to tell him what was in the application. The appropriateness of that concession is suggested by the inclusion of the interpreter’s declaration in the completed application. Taken at face value, that declaration, in the light of Mr Sun’s concession, strongly suggests Mr Sun well knew the 9 October 2002 application was for a protection visa, and based on a claimed fear of persecution.
44.Nevertheless, Mr Sun said unequivocally he did not know the document he so formally signed on 9 October 2002 was a protection visa application. Mr Liang did not read it to him. He did not ask Mr Liang to translate it. He just trusted Mr Liang. Perhaps consistent with that evidence, but in contrast to the inherent likelihood that Mr Sun would have sought some explanation about the nature of the information in the document, Mr Sun has at no stage given any clear positive evidence as to what he thought was contained in the application.
45.Mr Sun’s new migration agent, Ms Amy Lee, wrote a letter to the Department on 5 October 2006 providing, apparently as a word for word translation of his instructions, various comments from Mr Sun in response to queries the Department had raised about the present application. In one of these quotations Mr Sun says Mr Liang told him “he could extend [his] business stay in Australia”. In a statement dated 20 November 2007 Mr Sun also says that he authorised Mr Liang to apply for an extension of the business visa.
46.These claims are most unlikely to match the reality of the events that occurred in relation to the 9 October 2002 application. Mr Sun claims he wanted to stay in Australia because of his relationship with Ms Li, and more particularly because of her pregnancy. Both in the 5 October 2006 letter and his 15 June 2007 statement, Mr Sun claims he told Mr Liang about these matters. They did not provide any basis for a business visa. Indeed, since at least his May 2002 withdrawal from the deer farm proposal, Mr Sun no longer had any identified business intentions in Australia. The grounds previously relied on for the original business visa application in 2001 had been comprehensively rejected and the time had expired to apply for a review of that decision. The reasons for the rejection of the application also rather suggest that the application had been doomed to failure, in any event. This was certainly the case in the absence of any genuine and approved sponsor. This background suggests that further pursuit of the original business visa application was both procedurally and substantively futile, Mr Sun gave no evidence that he conveyed to, or discussed with, Mr Liang any business purpose of any kind during the course of the September or October 2002 meetings with him. There is certainly no suggestion of discussion about a business sponsor in October 2002.
47.Against this background it strains credulity beyond acceptable limits to accept Mr Sun’s evidence that he did not know the 9 October 2002 application was for a protection visa. This is so for at least three reasons. First, on any reasonable appreciation of the objective circumstances, neither Mr Liang nor Mr Sun could have had any realistic expectation that Mr Sun could extend, or obtain, a business visa. Second, given the apparent importance of the application to Mr Sun, and the failure of his previous application, Mr Sun might reasonably have been expected to exhibit a lively curiosity about the information Mr Liang intended to include in the application in support of an application to extend his business stay in Australia. Mr Sun gave no evidence of any such enquiry and no evidence of any understanding of the content of the application. Third, Mr Sun’s claim involves the inherently unlikely proposition that, in response to a request to apply for an extension of a business visa Mr Liang, without any promise of significant financial reward, autonomously formulated, and then concealed from Mr Sun, an entirely specious basis for the visa application. Mr Sun’s evidence provided no explanation as to why Mr Liang might undertake such a course of action.
48.In addition to the inherent unlikelihood of Mr Sun’s professed ignorance of the basis of the 9 October 2002 application, four other matters tend to encourage the conclusion he well knew the 9 October 2002 application was for a protection visa, and the basis on which it was made.
49.The first of these appeared from Mr Sun’s telephone evidence. He said he did not ask Mr Liang any questions about the proposed visa application. He just told him “as long as I can stay in Australia lawfully, not becoming unlawful, that will do”. Taken in isolation, the instruction could be interpreted benignly. But it occurred in a context where Mr Sun’s claimed interest in some kind of “extension” of his business visa had no basis. Furthermore, Mr Sun conceded Mr Liang had told him about “what information the Department needed”. When invited to explain what that information was, Mr Sun said Mr Liang just asked him to sign and did not tell him specifically what the Department required. The explanation tends to contradict the concession. The conceded discussion about “what information the Department needed” in relation to the October 2002 application was inherently likely to convey its basic nature as a protection visa application and the grounds on which it was to be pursued.
50.The second matter appears in the spouse visa application lodged in Shanghai in September 2005. It includes a statement of “My Visa History”. Although the statement is in English, it is dated 12 July 2005 and has been signed by Mr Sun. It states that “I lodged an application for protecting visa, reasoning that I hold dissidence with Chinese government”. This knowledge is consistent with the inference suggested by the concession referred to in the preceding paragraph.
51.It is fair to acknowledge that Mr Sun admits that by March 2004 he knew that the 9 October 2002 application was for a protection visa, and relied on the specious claim that he was a Falun Gong practitioner. Consequently, the statement in the “My Visa History” document might conceivably have been included as an objective statement about the contents of the October 2002 application, rather than being intended to reflect Mr Sun’s actual knowledge and belief about the contents of the application in October 2002. But, as it is presented in the “My Visa History” document, the statement appears as an unselfconscious reflection of the reality of Mr Sun’s knowledge when the application was made. The statement does not just record the fact that the application was for a protection visa, it explains the reason why the application was made and it espouses that reason as the subjectively held belief of Mr Sun himself. Proffering the reason for the application in this way is, to my mind, quite inconsistent with total ignorance of the nature and content of the protection visa application when it was made in October 2002. I do not accept that Mr Sun would have described the protection visa application in this way if he had really believed that the protection visa application was wholly specious and the basis for it had been formulated by Mr Liang without his knowledge or authority.
52.The third indication is contained in the handwritten notes of the 1 March 2006 telephone interview (to which I referred in paragraph [39]) between Mr Sun and the Shanghai Consulate officer. These notes should be approached with some caution. The author probably made them as an aid to their own memory, rather than as an actual word for word account of what Mr Sun said. Also, Mr Sun does not speak or read English and the notes involve untested translation. Nevertheless, the notes record that, when asked what he did after his June 2001 business visa application had been rejected, Mr Sun said he had applied for a protection visa. When asked why he had applied. He said he had not wanted to leave Ms Li. The notes are admittedly brief and may not reflect the totality of the conversation. But the significant point is that the context suggests that there was a specific enquiry about why Mr Sun had applied for a protection visa. If he had felt that the protection visa application had been made without his knowledge, and its contents had been wholly contrived by Mr Liang, this conversation, and particularly the response to that question, gave him the opportunity to provide that explanation. It was not the explanation he proffered.
53.In the course of his telephone evidence, Mr Sun was questioned about these questions and answers recorded in the notes. He asserted that at the time of the conversation they record (that is, on 1 March 2006) he did not even know what a protection visa was. I do not accept that claim. It is inconsistent with (i) Mr Sun’s explicit reference to a “protection visa” in the passages of his comments set out in Ms Lee’s 5 October 2006 letter, and (ii) the description “protecting visa” in his 12 July 2005 “My Visa History” signed statement that was attached to the original spouse visa application.
54.The fourth indication is derived from Ms Amy Lee’s 5 October 2006 letter. On 25 September 2006 the Department wrote to Ms Lee advising her that there appeared to be a basis for refusing the current application on character grounds. It invited her to comment on a number of matters. These specifically included the circumstances of the protection visa application. In particular, it raised the question whether Mr Sun had any genuine belief that he feared persecution as a Falun Gong practitioner or whether the protection visa application was made merely as a way of extending his time in Australia.
55.Ms Lee’s letter set out Mr Sun’s response. It concedes that, because of Ms Li’s pregnancy, Mr Sun could not leave her alone in Australia and did not want to leave. It claims Mr Liang said he could extend his business stay (a statement I have already found had no objective basis and was unlikely to have been made). It also says that Mr Liang knew his “immigration history” and he left Mr Liang to make the application. What the comments do not explicitly say, and in my opinion the omission is significant, is that Mr Sun (i) did not know that the 9 October 2002 application was for a protection visa, (ii) was not a Falun Gong practitioner, and (iii) did not know that was the basis of the application. Neither do they respond directly to the concern, which was specifically raised in the Department’s 25 September 2006 letter, that the protection visa application had been lodged without any genuine justification, and merely for the purpose of extending Mr Sun’s stay in Australia. Despite not addressing these points specifically, the letter concludes with an apology for “what has happened” and an assertion that, if he was allowed to migrate there was “no likelihood he will do the same thing again”. The generality of this apology, in the light of the explicit queries on which Mr Sun had been invited to comment, tells in favour of the conclusion that Mr Sun knew, in October 2002 of both the fact and the nature of the protection visa application.
56.The history of the protection visa application between November 2002 and December 2003 provides further reason to support a finding that Mr Sun knew the nature of the protection visa application. The application was first rejected on 25 October 2002. Notice of the rejection, and a copy of the reasons, was sent by registered post to Mr Sun’s address nominated on the application – 85 Fifth Avenue, Campsie. This is not one of the Australian addresses at which Mr Sun concedes having lived. Indeed, his evidence is that between July 2002 and June 2004 he lived with Ms Li at Burwood. In that period, a later registered letter posted by the Refugee Review Tribunal to the Campsie address in August 2003 was returned undelivered. But there is no evidence the 25 October 2002 letter was returned.
57.Irrespective of whether or not Mr Sun received the 25 October 2002 letter, it is certain that Mr Liang was notified of the refusal of the protection visa application. On 19 November 2002 he lodged a review application with the Refugee Review Tribunal on Mr Sun’s behalf. The application includes a declaration of accuracy purportedly signed by Mr Sun on 18 November 2002. On 11 August 2003 the Refugee Review Tribunal posted hearing invitation notices to both Mr Sun and Mr Liang. As noted earlier, the letter addressed to Mr Sun was returned undelivered. But on 8 September 2003 Mr Liang lodged a response with the Tribunal. It indicated that both Mr Sun and Mr Liang would attend a hearing and that Mr Sun would require an interpreter. The response is purportedly signed by Mr Sun. Mr Liang requested a change of hearing date, on the ground that he would be in China between 19 September and 25 October 2003. On 10 September 2003 Mr Liang was told that the hearing would proceed on 13 October as scheduled. Mr Liang then told the Refugee Review Tribunal that he had discussed the matter with Mr Sun and that Mr Sun would attend the hearing alone.
58.Mr Sun says neither of the purported signatures on the Refugee Review Tribunal documents dated 18 November 2002 and 8 September 2003 is his. If any impression can be gained from the copies of those documents available to the Tribunal, it is fair to say that the two signatures have apparent differences. But at least two of the three characters in the signature on the 8 September 2003 document appear very similar to Mr Sun’s signature on the present application. There was no expert handwriting evidence and Mr Sun’s oral evidence disavowing that signature was, at least initially, somewhat diffident. Furthermore, in his 20 November 2007 statement Mr Sun had explicitly acknowledged having signed the 8 September 2003 document. In that statement he explained that he had signed several documents, one of them blank, at Mr Liang’s home. He said Mr Liang had explained that “this one would be the supplementary document in the later stage”. Although he was quite unable to explain what the documents were that he signed, there is a strong inference that they related to the protection visa application and, in particular, documents involving the Refugee Review Tribunal proceedings. In these circumstances, I do not consider that the authenticity of the signatures can be satisfactorily determined. In any event, even if the evidence did establish that the signatures were not genuine, that would not necessarily demonstrate, having regard to the other matters I have considered, that Mr Sun was unaware of the fact and nature of the protection visa application.
59.It is more instructive to consider the objective implications of Mr Sun’s claimed ignorance of, not only the nature of the protection visa application, but also of the fact of the proceedings in the Refugee Review Tribunal. These implications are that Mr Liang (i) formulated a protection visa application on a wholly specious, indeed fraudulent basis, (ii) did so without either knowledge or encouragement from Mr Sun – other than the instruction that “not becoming unlawful, that will do”, (iii) when the application was rejected, Mr Liang initiated review proceedings, again without either Mr Sun’s knowledge or authority and supposedly procuring his forged signature for that purpose, and finally (iv) knowing that both the specious protection visa application and the review proceedings had been made without Mr Sun’s knowledge or authority, Mr Liang informed the Tribunal that Mr Sun would attend the hearing and would require an interpreter.
60.The course of conduct these implications would impute to Mr Liang could have little purpose, other than merely to secure and then prolong the duration of a bridging visa. But, viewed from the perspective of Mr Liang’s self interest, such a course of conduct makes virtually no sense. On the one hand, it provides him with no direct personal advantage. On the other, the presentation of false information exposed Mr Sun to the risk that the application would be rejected and the false claim could jeopardise any future application he might make. By exposing Mr Sun to these risks, such a false claim was clearly in breach of an agent’s duty. In addition, such a false claim would have exposed Mr Liang not only to the risk of deregistration (under section 303 of the Migration Act 1958) but also to the risk of prosecution (under section 234 of the Migration Act 1958). It is difficult to conceive that an agent, conscious of his duty to his client and his own self interest, would incur risks of those kinds. Certainly they are unlikely to do so merely out of a sense of dishonest altruism. Yet acceptance of Mr Sun’s claims would entail precisely that conclusion.
61.Given the whole of the circumstances I have considered, the proper conclusion to draw is that Mr Sun knew the application he signed on 9 October 2002 was a protection visa application, and was based on a fear of persecution claim. He now concedes that such a claim had no basis. His attempt to attribute to Mr Liang the entire and unprompted responsibility for this unfounded claim is inherently incredible. Moreover, that claim is itself apparently contradicted by some of his own statements. These statements are (i) the “My Work History” statement that accompanied the present application and (ii) the statements attributed to him in the notes of his telephone interview on 1 March 2006. In these circumstances, I do not accept Mr Sun’s claimed ignorance of the nature and content of the protection visa application. I find that he knew the 9 October 2002 visa application was an application for a protection visa, that he encouraged Mr Liang to make such a claim, that he did not believe the claim had any basis in fact and that he caused the application to be made for the sole purpose of contriving to obtain a further visa to remain in Australia for as long as possible.
The Refugee Review Tribunal proceedings
62.I have previously referred to Mr Sun’s statements that (i) Mr Liang had him sign documents that were to be “supplementary … in the later stage”, and (ii) that Mr Liang explained to him “what information the Department needed”, in relation to the October 2002 visa application. Those statements, in the context in which they are likely to have occurred, provide a strong basis for inferring that Mr Sun knew his protection visa application was likely to be a matter of contest and involve some process of further review. It seems likely that he would have received from Mr Liang some understanding of the basic review process involving the Refugee Review Tribunal.
63.Mr Sun asserts, on the other hand, that he had no knowledge of the Refugee Review Tribunal proceedings. In my opinion that assertion overstates the true position – because of the inference available from the matters referred to in the preceding paragraph. However, there is no evidence, beyond the disputed signatures to which I have referred, directly implicating Mr Sun in the actual conduct of the review proceedings in that Tribunal. In these circumstances, I do not consider there is a sufficient evidentiary basis to conclude that Mr Sun knowingly and actively participated in those review proceedings in a way that materially compounds his initial misconduct. But that initial misconduct was itself serious. He made a false protection visa application. He intended that it would be pursued. He intended that pursuit might include the provision of “supplementary document[s] in the later stage”. He did not concern himself with the accuracy of the information contained in those documents but, having regard to the unfounded nature of the protection visa claim, he must have appreciated that additional untrue information was to be submitted, if it was required to enhance the prospects of ultimately obtaining the visa.
The Ministerial intervention claims in 2004
64.In reaching his conclusion that Mr Sun had knowingly submitted a false protection visa application, and that Mr Sun had embarked upon a sustained course of dishonest conduct, the Minister’s delegate was also influenced by Mr Sun’s application for Ministerial intervention in 2004. The delegate thought that in this application Mr Sun had continued to pursue the false protection claim. Additional documents subsequently located by the Department, and provided to the Tribunal, demonstrate the error in this view. Mr Sun first wrote to the Minister on 24 March 2004. The letter expressly relies on spousal relationship. It indicates a belief that such an application could not be lodged from within Australia, and seeks exemption from the requirement that Mr Sun first leave Australia and lodge the application in China. However, there is no reference to Falun Gong and no claim to need protection. None of the other available documents suggests (and I note that the Department has not produced the attachments referred to in Mr Sun’s subsequent letter dated 12 May 2004) that such a claim was ever pursued with the Minister.
Good character in the light of the pursuit of false visa claims
65.Under subsection 501(6)(c) of the Migration Act 1958 a person passes the character test unless there is a positive conclusion that they are not a person of good character: Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 at 425-426; Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552 at 566 [50]-[52]. In the context of subsection 501(6)(c), the term “good character” refers to a person’s actual moral qualities, and continuing performance according to moral principle, rather than their reputation: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425 (per Davies J) and 431-432 (per Lee J); Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 at 426 [51]. There are no precise parameters by which to distinguish between “good” and “bad” character: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 428A; and the significance of conduct in the assessment of character may vary according to the purpose for which the assessment is being made, including the nature and length of the visa concerned: Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 433A; Re Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771 at 776 [17]. Fundamentally, the assessment of character involves a comparison of the person’s conduct with the attributes of ordinary standards of reasonable behaviour and social conduct accepted within the Australian community: Re Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [13]. Consistent with both of these last two propositions, a person may be of good character even if they do not meet the highest standards of ethical conduct: Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324 [8] (failure to answer pending disputed criminal charges in another country is not in itself evidence a person is not of good character).
66.Character findings made in a forensic setting are primarily matters of impressionistic inference based on evidence of a person’s actual conduct, rather than expert psychological assessment: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425C; Re Steele and Minister for Immigration and Multicultural Affairs (AAT 12319, 21 October 1997). Such an assessment permits considerable breadth of permissibly relevant considerations. That breadth of relevance, as well as the practical difficulty of a character assessment based wholly on evidence of objective conduct, makes it inevitable that evidence of a person’s reputation will often be admissible as a permissible source of inference about the nature of their character: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425 (per Davies J). But the appropriateness of the inference in any particular case will necessarily depend on satisfaction that the repute is based on accurate awareness of the person’s conduct.
67.Whatever the source of the information on which it is based, the assessment of character for the purpose of subsection 501(6)(c)(ii) of the Migration Act 1958 must reflect a conclusion about the person’s “general” conduct. The assessment is directed towards an opinion about what have been variously described as the person’s enduring or inherent qualities: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR at 431G; ReMsumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 at [37]. It is not merely an inference based on particular acts or omissions: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. Assessing those qualities involves more than a consideration of a person’s usual or prevalent behaviour. Episodic, and even isolated, episodes of misconduct may, depending on the particular circumstances, provide telling objective evidence that a person is not of good character: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195; Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781. But the justification for such a conclusion will depend on comparison of the extent to which past conduct showed moral turpitude and, if so, the extent to which the absence of similar subsequent conduct diminishes the significance of that conduct as an indicator of moral worth: Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 at 428 [63]. Depending on the outcome of that comparison, past misconduct is not necessarily a conclusive determinant precluding a finding of current good character.
68.In the present case, apart from the findings I have made, there is nothing to impugn Mr Sun’s past or present conduct. There was no evidence that Mr Sun had worked illegally in Australia. Statements from Ms Li’s brother, and her father, attest to Mr Sun’s good character and the dutiful performance of his family responsibilities in China. Mr Sun’s father has also provided a statement. He vouches for his son’s honesty and thinks there must have been some misunderstanding in relation to the dishonesty allegation made against Mr Sun. Mr Sun’s sisters, Aili and Aiyu, make similar declarations of Mr Sun’s honesty in their statements. Mr Huang Jian is a long-time friend of Mr Sun. He regards Mr Sun as trustworthy and is surprised at the suggestion that he engaged in fraudulent behaviour in his Australian visa applications. He describes Mr Sun as a honest man with a sense of responsibility to family, children and friends. According to his understanding, Mr Sun would not make a fraudulent application. Wen Wu met Mr Sun in 2003. He describes Mr Sun as a man who “never tells lies” and always keeps his promises. Zhang Wei makes a similar declaration of confidence in Mr Sun’s trustworthiness and honesty. Mr Liu Jian Xin says he has known Mr Sun for five years. He also regards Mr Sun as a man who pays attention to personal honesty and trust.
69.Although none of these people was required for cross examination, and their opinions do support Mr Sun’s general good reputation, their opinions are not informed by detailed knowledge of the circumstances of Mr Sun’s visa applications. I have found that Mr Sun knew his June 2001 business visa application was made on a false basis, in that it did not disclose his true purpose (originally the proposed deer farm investment) and relied on a purported sponsorship that was not genuine. I have also found that Mr Sun knew his October 2002 visa application was a protection visa application, and that he did not believe there was a genuine basis for such an application. The consequence of these findings is that Mr Sun secured his presence in Australia, between June 2001 and until at least 30 March 2004 (when he obtained a bridging visa in connection with his claim for Ministerial intervention) as a result of misleading and false visa applications.
70.In August 2001 the Minister issued a direction, under section 499 of the Migration Act 1958, entitled “Direction – Visa Refusal and Cancellation under Section 501 – No. 21”. The Tribunal is, as was the delegate, required to comply with this Direction, to the extent that it is consistent with the Act and regulations, in determining Mr Sun’s migration application. Paragraph 1.9 of the Direction provides that a non-citizen would, in the absence of “countervailing factors”, fail to pass the character test in section 501 of the Migration Act 1958 if they had been involved in various kinds of conduct. Some of the proscribed kinds of conduct include: (i) involvement in activities indicating disregard for the law, (ii) involvement in breaches of immigration law and (iii) providing false or misleading statements in connection with any visa application. Conduct of the latter kind itself constitutes an offence, under section 234 of the Migration Act 1958, and is potentially punishable by imprisonment for up to 10 years.
71.The fact that subsection 501(6)(c)(ii) of the Migration Act 1958 requires the character assessment to be made having regard to “the person’s past and present general conduct” does not preclude significance being attached to isolated conduct. Honesty and candour in connection with any immigration application can reasonably be regarded as pre-requisites to any assessment of good character for the purpose of a visa application under the Migration Act1958. That view is reinforced by the opening lines of Ministerial Direction No. 21 paragraph 1.9, whose effect I have summarised in the preceding paragraph.
72.The reference to “countervailing factors” is complemented by Ministerial Direction No. 21 paragraphs 1.7 and 1.11. Paragraph 1.7 emphasises that the character assessment must take into account “all the relevant circumstances of the particular case”. Both paragraphs 1.7 and 1.11 require regard to be had to any evidence of rehabilitation and good conduct. These requirements implicitly recognise that a person’s conduct is a response to the experiences they encounter. Some of these experiences are matters of everyday occurrence, some present exceptional features. These exceptional features may involve good fortune, opportunity, necessity, risk or calamity. They may also merely arise because the circumstances involve matters of singular importance and formality. Sometimes a person’s conduct in relation to an unusual or exceptional occurrence will be especially and informatively revealing of their character. But there will also be occasions when past impropriety is better regarded as aberrant, more accurately described as “out of character” and not, or at least no longer, indicative of their real character, their enduring or inherent qualities.
73.The generality of the considerations required by Ministerial Direction No. 21 precludes the assessment of character being conducted by the application of prescriptive rules. It requires an impressionistic assessment that takes into account both the generality of the person’s circumstances and the implications of their impugned conduct in the particular circumstances. Taking these disparate considerations “into account” in reasoning towards an ultimate satisfaction about the quality of the person’s character presents particular difficulty where the impugned conduct is especially probative of dishonesty, but is an isolated occurrence and the person concerned is otherwise able to demonstrate a history of good conduct.
74.In relation to the June 2001 business visa application Mr Sun claims to have been enthusiastic about the deer farming venture. But there was no objective information to demonstrate the reality of the proposal, or the justification for his enthusiasm. And it does not figure in the business visa application itself. It certainly does appear that Mr Sun received encouragement from Mr Zong and perhaps from Mr Liang, in relation to the sponsorship proposal. But, given Mr Sun’s apparent awareness, and use, of the different Mandarin words for “sponsor” and “employer”, I consider he was not under any misapprehension about either the nature or the purpose of the “sponsorship” requirement for his business visa application. That view is complemented by a number of curious features of the business visa application. It was made in great haste, it contains significant errors of detail, at least some of which must have been deliberately made, and it was apparently incomplete, at least when Mr Sun signed it. In addition, Mr Sun neither abandoned nor amended the application when Mr Sun later decided not to pursue the deer farm investment. Finally, there is the suggestion by Mr Sun, in his 1 March 2006 telephone interview that Mr Liang “cheated” him, and his difficult to believe evidence about Mr Liang’s payment complaint (to which I have referred earlier). These considerations combined lead me to conclude that Mr Sun well understood his business visa application was misleading and inaccurate.
75.Furthermore, the business visa application does not stand alone. It was immediately followed by Mr Sun’s participation in the making of a specious protection visa application based on false claims. Mr Sun’s claim (in the 5 October 2006 letter and his November 2007 statement) that he instructed Mr Liang to apply for an extension of his (business) visa, is not credible. It is not credible because he advances no basis on which such an application might have been made. His claim (in his July 2007 statement and in his telephone evidence to the Tribunal) that he thought there was a “legal way” of remaining in Australia is similarly unexplained and not credible.
76.In my opinion Mr Sun’s involvement in the business visa application and the protection visa application indicate he was not of good character at the time of either application.
77.I do not overlook the evidence that each of the misleading applications was made with the assistance of a migration agent and that Mr Sun claims to have relied entirely on the advice and assistance of the agent. In relation to the June 2001 business visa application that advice appears to have included the active participation of the agent in contriving a sponsorship proposal solely for the purpose of the visa application encouragement. (However, it is important to note both that the agent gave no evidence in the proceedings and that there is no evidence, oral or documentary, specifically corroborating that the agent gave the advice for which Mr Sun contends.) In relation to the October 2002 protection visa application, the extent of the agent’s responsibility for the false claims in that application may be a matter of significant dispute between the agent and Mr Sun. No evidence was produced of any admission of misconduct by the agent, nor did he give evidence in the proceedings.
78.The involvement of the agent may have contributed to the falsity of the visa applications, at least in the case of the June 2001 business visa application. But every visa applicant has their own personal obligation of honesty and an obligation not to provide misleading or deceptive information. Applicants do not discharge that obligation merely by retaining the assistance of an agent. Though applicants will be provided with advice and assistance from their agents, they must retain their own ordinary standards of honesty and accuracy. This is made clear in the various forms of declaration typically required of applicants in the various visa application forms.
79.Consistent with that view, several previous Tribunal decisions contain comments to the effect that a visa applicant cannot deflect responsibility for false information by asserting reliance on migration agents, or other persons, in completing their applications: Re Issa and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421 at [51]; Re Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625 at [18]; Re Pham and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1108 at [47]; Re Ha and Minister for Immigration and Multicultural Affairs [2000] AATA 896 at [47]; Re Tremlett and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244 at [38]. Some care should be taken to observe the context in which these statements have been made, because in each case it is necessary to determine the extent of the person’s actual conduct and the purpose for which their responsibility is being considered. Some provisions of the Migration Act 1958 expressly permit cancellation of a visa where incorrect information has been supplied, irrespective of the applicant’s subjective knowledge of the error: see section 111 of the Migration Act 1958. The view has also been expressed that the offence provisions in section 234 of the Migration Act 1958 do not require proof of the applicant’s subjective knowledge of the falsity of particular information: Re Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156 at [34]. But typically these kinds of statements have been made in the context of factual findings where the Tribunal has been satisfied either that the particular applicant actually knew of the falsity in the application or was actually “complicit” in the dishonesty of the person who completed the application – in the sense that the visa applicant did not inform themselves of, and had no actual belief in, the contents of the particular application: Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575 at [9]; Re Pham and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1108 at [38] and [46]; ReHobbins and Minister for Immigrationand Multicultural Affairs [2006] AATA 279 at [32], [34], [36] and [48]; Re Grech and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 22 at [52]; Re Xiang and Minister for Immigration and Citizenship [2008] AATA 23 at [42].
80.Applying the general concept of responsibility for visa application error, in making an assessment of the applicant’s character, presents a particular difficulty where the applicant is neither literate, nor otherwise able to communicate effectively, in English. No doubt the nature and circumstances of the application should itself impress upon an applicant the need for honesty and accuracy. Honest applicants may reasonably be expected to seek an assurance from those assisting them that the application has been properly translated, that all the required information has been provided and that all the information has been accurately recorded. The typical requirement for the applicant’s formal execution of their visa applications underscores that expectation. Where an honest applicant, and their advisers, follow such a course of conduct there is a much reduced scope for misunderstanding, misinterpretation and error. They may still occur, but they will probably rarely involve fundamental aspects of the information provided. And it is necessary to recognise that no illiterate applicant has any practical means of directly satisfying themselves about the accuracy of the contents of any document. It must follow that the mere fact of material inaccuracy in the contents of a visa application cannot, having regard to the accepted meaning of the term “good character”, of itself require an adverse finding in relation to the character of the visa applicant.
81.In the present case, however, the findings I have made about Mr Sun’s knowledge of the inaccuracies in his visa applications are not based on vicarious responsibility for the conduct of Mr Liang. They are based on Mr Sun’s own actual knowledge of the spurious nature of the sponsorship proposal in the June 2001 business visa application and his knowledge that the October 2002 application was for a protection visa.
82.It can be said that, when Mr Li made his protection visa claim, his newly established relationship with Ms Li, and her pregnancy, placed understandable pressures on him, in particular, the likelihood that she and their child were likely to need his physical and financial support. But there were no exceptional hazards the couple faced as a result of Ms Li’s pregnancy. The circumstances that confronted Mr Sun do not provide any excuse for the deliberate and dishonest resort to the protection visa application. Neither do they contradict the propriety of drawing an adverse character inference from that conduct.
83.In his evidence in the present proceedings, Mr Sun said that he had an unblemished record, in both China and Australia, apart from the matters involved in the proceedings. He is generally regarded as a person of good fame and character. He says that he would not, in the future, be a party to breaching any Australian migration laws. But he says he did not intentionally commit any such breaches in the past.
84.The delegate referred to the comments attributed to Mr Sun in Ms Lee’s 5 October 2006 letter in which he expressed an apology (for his overstay) and expressed regret “for what has happened”. The delegate was doubtful that Mr Sun was genuinely remorseful and noted that he continued to attribute blame on others, but he thought Mr Sun was then being “open about his past transgressions”. Contrary to the latter view, I do not consider that Ms Lee’s letter involves the explicit recognition of misconduct that the delegate inferred from it. Mr Sun’s evidence to the Tribunal was that he did not know there was anything incorrect about his business visa application and that he did not know Mr Liang had lodged a protection visa application. At the most, Mr Sun conceded undue reliance on Mr Liang.
85.Mr Sun’s claimed reliance on Mr Liang does not rebut the adverse character inference that flows from the findings I have made. And even if the apology and expression of regret contained in the 5 October 2006 letter should be interpreted as a candid acknowledgement of past misconduct, as the delegate thought, they are not significant factors that would lead to the conclusion that Mr Sun is currently of good character. Ministerial Direction No. 21 paragraph 1.11 ultimately suggests that unless the decision-maker is “fully persuaded that the non-citizen has reformed” they should be regarded as failing to pass the character test. The notion of being fully persuaded of a person’s reform necessarily requires satisfaction that the person, if exposed to situations of similar opportunity, exigency or hazard, could confidently be relied on to behave lawfully and honestly. This is necessarily a highly impressionistic exercise. But Mr Sun’s expressions of regret and apology were made in a context where the objective circumstances indicate they were called for by self interest. They carry little weight.
86.In considering the concept of reform some flexibility is required. If Mr Sun was granted the spousal migration visa for which he has applied, he would presumably never again be placed in a position where the Australian community would be at risk of falsity in connection with his visa applications. But the assessment of good character looks more broadly than the precise scenario of the past misconduct. It must look at the risk of repetition in analogous situations. And in assessing that risk, it is necessary to assess the nature and duration of the impugned conduct, how long ago it occurred, and the person’s subsequent attitudes and behaviour.
87.I have found that Mr Sun knowingly lodged two visa applications, neither of which disclosed his true purpose and both of which were based on claims that he knew were not genuine. This conduct was inherently serious misconduct, and reflects adversely on Mr Sun’s character. In my opinion, having regard to the nature of that past conduct, his apparently good conduct and repute, in the different circumstances that have prevailed since March 2004 (and specifically the known failure of his previous applications), is not sufficient to contradict the adverse character inference to which that past conduct gives rise. Mr Sun is not a person of good character.
Additional discretion to approve the application despite absence of good character
88.Subsection 501(1) implies a discretion to grant a visa even if the applicant does not satisfy the character test. Part 2 of Ministerial Direction No. 21 contains the considerations to which the Tribunal must have regard in the exercise of that discretion. It identifies three primary considerations. These are:
(a)Direction No. 21 - paragraphs 2.3(a), 2.4 – 2.11; the protection of the Australian community and members of the community – involving consideration of the level of risk to the Australian community having regard to:
(i)the seriousness of the applicant’s impugned conduct,
(ii)the likelihood of repetition and recidivism, and
(iii)the potential discouragement of similar conduct.
(b)Direction No. 21 - paragraphs 2.3(b) and 2.12: the expectations of the Australian community.
(c)Direction No. 21: Paragraphs 2.3(c) and 2.13 – 2.16: the best interests of infant children.
Protection of the Australian community
89.Presentation of false or misleading documents or information in connection with visa applications constitutes an offence that is characterised as serious conduct for the purpose of Ministerial Direction No. 21: see paragraph 2.6(c). Where a visa applicant has engaged in conduct of that kind that circumstance is highly relevant to proper consideration of the “protection of the Australian community”. It is particularly significant where the impugned information is fundamental to the particular application and might reasonably be regarded as deliberately intended to wrongly influence the application decision in favour of the applicant. The findings I have made bring Mr Sun’s conduct into that category, in relation to both his business visa and protection visa applications.
90.In the present case, it is accepted that Mr Sun is generally of good character, apart from the immigration misconduct that I have found. He also asserts his intention to abide by Australian laws, if the present application succeeds. It is certainly true to say that, if the application did succeed, he should have little need to make any further immigration visa application and, in that respect, there would appear to be a low risk that he would, in the future, engage in improprieties of the kind I have found. But, as I said earlier in relation to the concept of reformation, the question of risk must be addressed in the light of analogous situations that might arise in the course of Australian residence: see Re Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107 at [60]; ReBeale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714. There are many situations in which an Australian resident is likely to apply for licences, benefits, credit and insurance. Honesty and accuracy, even against self interest are typically required. It is difficult to be satisfied completely, in view of his past conduct, that Mr Sun can be relied on, either to exhibit these qualities for himself or to ensure that they are exhibited by those who might assist him, given his English language difficulties. Despite that difficulty, however, it is appropriate to recognise that there is no evidence of other misconduct by Mr Sun during the five year period he lived in Australia from June 2001 until September 2005. Given that consideration, and his generally good repute, I consider that the risk of his engaging in relevantly analogous misconduct in the future should not be regarded as substantial.
91.Ministerial Direction No. 21 paragraph 2.11 describes general deterrence as an important, but not conclusive consideration. It refers, in particular to the relevance of deterring other people both from committing similar offences and from being involved in similar schemes, where the concept of schemes is appropriate in the circumstances.
92.Many provisions of the Migration Act 1958 require honesty and accuracy from visa applicants. Those requirements have also been emphasised in many decisions of this Tribunal. In 1994, in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155-156 the Tribunal pointed out that truth in dealing with officials in migration matters is of fundamental importance in upholding the purposes of the Migration Act 1958. In upholding those purposes, it was particularly important to insist upon the honesty of applicants in relation to matters where the truth is most likely to be readily known only to them. The Tribunal has consistently repeated these views, emphasising that it is a matter fundamental both to the proper administration of the Migration Act 1958 and also to the fair and equal treatment of all visa applicants: see Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984 at [48], Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246 at [17]. These views have a particular materiality in relation to applications involving spurious claims for protection visas. In Re Issa and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421 at [56] the Tribunal pointed out that the protection visa regime was intended to protect those genuinely in need. It expressed concern that the making of false claims might detract from the timely and expeditious consideration of meritorious applications. It also expressed concern that the misuse of the migration system by the making of specious protection visa applications could only be seen as “serious conduct deserving of adverse attention”.
93.Because of Ministerial Direction No. 21’s explicit requirement to consider general deterrence, and considerations of the kind referred to in the preceding paragraph, the Tribunal has frequently recognised, and given effect to, the potential relevance of general deterrence: see, for example, Re May and Minister of Immigration and Multicultural Affairs [2000] AATA 480 at [84]; ReXiang and Minister for Immigration and Citizenship [2008] AATA 23 at [39] and [47]. In both Re Barattini and Minister for Immigration Multicultural and Indigenous Affairs [2005] AATA 157 at [38] and Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1331 at [64] the Tribunal recognized the difficulty of determining the deterrent value of any particular decision. Nevertheless, the Tribunal recognized the deterrent value of a consistent approach that sanctioned materially deceptive and misleading conduct with visa disapproval. More recently, in Re Howard and Minister for Immigration and Multicultural Affairs (2006) 91 ALD 250 at [103] the Tribunal expressed the view that contemporary research showed that general deterrence could play a significant role.
94.In the present case, the delegate characterised as “a systemic problem at present” the use of protection visa applications based on false or frivolous protection claims. The evidence in the present case does not establish that such a “systemic problem” in fact exists. Nor does it establish either that Mr Liang was an agent otherwise implicated in activities of that kind, or that Mr Sun sought him out for that reason. However, it is relevant that the present case is far from the first matter to come before this Tribunal involving the lodgement of a protection visa application involving specious claims of persecution because of association with Falun Gong: see Re Hobbins and Minister for Immigration and Multicultural Affairs [2006] AATA 279; Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1331; and Re Xiang and Minister for Immigration and Citizenship [2008] AATA 23. It is relevant because it tends to suggest that general deterrence may have a particular significance in relation to applications potentially involving similar claims.
95.Paragraph 2.12 of Ministerial Direction No. 21 requires consideration of the expectations of the Australian community. As explained in that paragraph, those expectations are partly concerned with the expectation of compliance with Australian law and partly overlap, therefore, with the consideration of the seriousness of applicant’s impugned past conduct and the risk of repetition of similar conduct. Paragraph 2.12 also addresses the possibility that visa refusal may be appropriate because the nature of the impugned conduct would lead to a community expectation that the visa be refused. To a substantial extent this aspect of community expectations seems to involve similar consideration to the concept of general deterrence.
96.At a more general level, the expectations of the Australian community certainly embrace the principled administration of migration law: see Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [89]-[99]. This includes the proper exercise of migration discretions involving due regard to the particular circumstances of individual applicants: Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]-[35]. Consequently, any assessment of the expectations of the Australian community must involve attributing to the community knowledge of all the relevant circumstances: Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7]. Not every error or irregularity in connection with the administration of migration laws would be expected to lead to the sanction of visa refusal. But irregularity involving material dishonesty, and especially dishonesty in making unfounded protection visa claims, could well be regarded as sufficiently significant to justify visa denial “unless there are powerful humanitarian or other reasons pointing in the contrary direction” in relation to the current visa application: Re Kaveh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1331. This approach reflects the view that granting a visa to people who have been found to have systematically cheated the immigration system over a long period would be an affront to the concept of fairness in relation to the administration of the Migration Act 1958. The affront suggested in this reasoning is the unacceptability of such a person deriving any benefit or advantage from their misconduct: Re Xiang and Minister for Immigration and Citizenship [2008] AATA 23 at [39]; Re McKay and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 861 at [35].
The best interests of children
97.Paragraph 2.16 of the Ministerial Direction No. 21 requires regard to the best interests of any infant children of the visa applicant. The Direction also provides that, in the absence of countervailing considerations, an infant child's best interests will be served if the child remains with their parents. That proposition has been described as almost axiomatic: Kaur v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 70 at [21].
98.Mr Sun has two children. The elder of the two is an 18 year old son who, since about 2004, has lived in Singapore with Mr Sun’s ex-wife. Mr Sun has had little contact with either his former wife, or his son, since he first came to Australia in May 2001. Mr Sun's younger child is his five year old daughter Sun Yu Xin. She was born to Ms Li Jie on 27 February 2003 and is an Australian citizen by birth. Mr Sun lived in Australia with Ms Li and Sun Yu Xin until they returned to China, in July 2005, to visit Ms Li’s ailing mother. Mr Sun joined them in China in September 2005. Thereafter, until very recently, they lived together as a family unit in Zhabei District, in Shanghai.
99.Ms Li gave evidence that Mr Sun had not been able to find employment equivalent to the job he had before 2001 with the Shandong Salian Construction Engineering Company. Mr Sun said he worked for a company that exports timber flooring to Australia. He earns a small income, equivalent to AUD$500 per month. That is about half the amount he was being paid in 2001. Mr Sun and Ms Li’s accommodation in Shanghai was small, their living conditions much less advantageous than in Australia and their prospects similarly limited. Ms Li and Mr Sun consider that their daughter’s prospects are much better in Australia than in China, even if that involves separation from Mr Sun. For these reasons Ms Li returned to Australia, with Sun Yu Xin, in about November 2007. Sun Yu Xin is enrolled to start school in Australia in 2008.
100.Whilst Mr Sun remains in China, future contact between father and child will be limited and restricted to occasional visits to China. The frequency of these occasions will be limited by what their savings permit. Ms Li estimates that return airfares to China for herself and Sun Yu Xin would approximate $2,300. She says she is only able to save about $10 per week. That fact, together with the modesty of Mr Sun’s current income, suggests that Ms Li’s future visits to China are not likely to be at all frequent. This kind of prolonged separation is likely to be a disadvantage to Sun Yu Xin. Ms Li said that father and daughter had a close bond. She has found it difficult to explain to her daughter both the reason for Mr Sun remaining in China and the uncertainty of whether and when he might join them in Australia. It is not difficult to understand the reality of the distress that such an uncertain period of separation may cause to a very young child, especially one who has hitherto had a close relationship with her father and is now about to embark on her early schooling.
101.In the 2005 spouse visa application Ms Li disclosed that she worked as a sales assistant from June 2003 until June 2004. But there is no evidence about the level of her income and in September 2004 she had been granted a parenting benefit. Ms Li said she has not received any financial assistance from Mr Sun since her return to Australia, because his wage in China is so low. Her only income is from Centrelink payments – parenting payment and family assistance. She sometimes runs out of money and calls on friends to help. It may be that her employment prospects might increase once Sun Yu Xin establishes herself at school, but there is no evidence of Ms Li having any substantial employment history to allow a meaningful assessment of her possible future income.
102.On the other hand, there is evidence suggesting that Mr Sun could secure well paid employment in Australia and that he could make a valuable contribution to the development of an Australian business. Mr Wang Xiu Peng is a director of an Australian company, JP Timber Flooring Pty Ltd. Since about October 2006 it has conducted a timber flooring business involving importing timber flooring from China. But Mr Wang operated an apparently similar business as a sole trader, trading as Liang Pu Decoration Company, for some years before that. JP Timber Flooring Pty Ltd is presently only a small company. Mr Wang estimated it had a quarterly turnover of about $100,000, but that it was growing at the rate of about 15% quarterly. This suggests a modest annual turnover of perhaps AUD$500,000. Mr Wang explained that the company currently has only one full time and two part time employees including himself. However, Mr Wang foresees a good market in Australia and is looking to expand. He has had some problems obtaining supplies from China, but regards those problems as having been resolved. Mr Wang says that he would employ Mr Sun and pay him a weekly wage of $1,000.
103.Mr Wang first met Mr Sun in China in 1998, when Mr Wang was still at school. He met him again in Australia in about 2001. When he was conducting his former business, Mr Wang regularly consulted Mr Sun for advice and assistance, until Mr Sun returned to China in September 2005. Mr Sun said that, when he was in Australia, he introduced Mr Wang to some of his own contacts in China and also helped Mr Wang negotiate with them. Mr Wang regarded this assistance as laying the foundation for the establishment of JP Timber Flooring Pty Ltd. Mr Sun explained that the company he now works for in Shanghai supplies JP Timber Flooring Pty Ltd with a lot of its timber flooring supplies. He says he deals with Mr Wang regularly to organise supplies.
104.Mr Wang said he regards Mr Sun as having particular knowledge and experience in relation to timber flooring, as a result of his previous employment in China with the Shandong Salian Construction Engineering Company. Mr Wang regards Mr Sun as being particularly skilled and experienced. Because of that opinion he is anxious to employ him if he returns to Australia. Mr Wang explained that he was confident that there was a growing Australian market for quality timber flooring, and that this was a demand that he was capable of supplying. He also said that whilst it was not difficult to obtain appropriate sales people in Australia, it was difficult to find employees who had a sound knowledge of natural timber flooring. It was also difficult to find someone who, as well as possessing that kind of knowledge, also understood and was familiar with the market and trade conditions in China. He regarded Mr Sun as an ideal prospective employee because of their long period of association and the level of trust that had been established between them, his substantial experience and technical knowledge of timber flooring, his previous employment with the Shandong Salian Construction Engineering Company and his previous assistance with the establishment of the company’s business.
105.Employment of the kind foreshadowed by Mr Wang would be a substantial benefit to Mr Sun, Ms Li and to their daughter. I accept that Mr Wang values the contribution that he expects Mr Sun would make to the business and that his intention to employ him is genuine. I consider that Mr Wang’s proposed employment would be available to Mr Sun and that, with that employment, it is likely he would be able to support his family in Australia.
106.I do not consider that the evidence justifies complete confidence that Mr Wang’s promised employment will endure for the longer term. Businesses do fail. The certainty of their longevity is perhaps particularly problematic in business areas where anticipated high growth rates might reasonably be expected to attract significant competition. Furthermore, the modesty of JP Timber Flooring Pty Ltd’s current estimated turnover suggests that Mr Sun’s anticipated $50,000 annual salary would represent a very significant expense for the business. For these reasons, neither the longevity nor the level of Mr Sun’s proposed employment with JP Flooring Pty Ltd can be regarded as certain. But I do accept that Mr Sun, because of his practical experience, technical skills and connections and experience in China, has a substantial contribution to make towards the potential development of Mr Wang’s company. Accordingly, I regard his employment prospects in Australia as real and substantial.
107.In these circumstances, the best interests of Sun Yu Xin favour the grant of the visa. Doing so would permit Mr Sun to be re-united with his daughter whilst she is still in her formative years. Maintaining a close relationship between them is likely to be important to her security and development in her early school years. It is likely to be particularly important to their future relationship, as Sun Yu Xin integrates into the Australia community and develops as an ordinary Australian child. In addition, with the real prospect of employment in Australia, the family income would substantially increase above what otherwise appears likely, at least for the immediate future. That prospect will eliminate the strain of separation, and the financial stress that Ms Li would otherwise experience as, in effect, a single supporting parent. Removal of those kinds of potential stress is also likely increase the quality of Ms Li’s parenting and, in that respect, also to be in the best interests of Sun Yu Xin.
108.The fact that an infant child’s best interests are a primary consideration does not mean that they are determinative of the outcome of a visa application. But they do require a careful comparative evaluation of the other relevant considerations, and a conclusion as to whether or not those considerations outweigh the best interests of the child: Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at [32].
109.In the present case, the continued separation of Mr Sun, consequential upon refusal of the visa application, will be a source of significant disruption to the family unit. That consideration is of relatively little persuasive significance in relation to the personal interests of Mr Sun, because of the fact that he embarked upon his relationship fully aware of his uncertain visa status, knowing that he had no entitlement to permanent residence and, on the findings I have made, knowing that he had made visa application on a false basis.
110.In relation to Ms Li, it is true to say that she was aware that Mr Sun did not have permanent residence when they began their relationship. But there is no evidence that she was aware of any character concerns involving Mr Sun when they commenced their relationship. Neither is there any evidence to justify conclusions that either Mr Sun and Ms Li’s marriage, or the birth of their daughter, was in any way contrived for the purpose of assisting Mr Sun’s migration status. In these circumstances, it is relevant and important to recognise that refusal of the visa application will significantly adversely impact on Ms Li – by depriving her, for a potentially indeterminate period, of the companionship of her spouse and the prospect of his financial support.
111.Against those considerations, of significant potential disadvantage to both Ms Li and Sun Yu Xin, the findings I have made about Mr Sun’s misconduct in connection with his 2001 and 2002 visa applications must be taken into account. The exercise of evaluating the comparative strength of the relevant primary considerations in the present case, and also taking into account the “other considerations” outlined in Ministerial Direction No. 21 paragraph 2.17, does not lend itself to a conclusion that is likely to command universal agreement. But, in the particular circumstances, I consider it is preferable to give precedence and effect to the best interests of Sun Yu Xin.
112.Mr Sun’s conduct in relation to the business visa application was apparently suggested to him, and facilitated by others. This does not, for the reasons I have indicated earlier, relieve him of personal responsibility. But, in view of the evidence of the witnesses who depose to his general good character and repute, it is not, of itself, strongly indicative of the likelihood of dishonesty in his ordinary dealings in the Australian community. Moreover, it is now over six years since that application was made and, so far as the evidence reveals, the only matter that has occurred since then that is indicative of the absence of good character is the protection visa application. In that context, it is significant that there is no evidence Mr Sun committed any offences whilst he was in Australia and, in particular, there is no evidence that he breached his visa bridging visa conditions.
113.In relation to the protection visa application, that application was made over five years ago. Moreover, it was made in circumstances of particular exigency, being Ms Li’s pregnancy and Mr Sun’s desire to remain with her in Australia. Again, those circumstances do not excuse Mr Sun’s conduct in making the protection visa application, but they do lend to it a possible colour of understanding that is relevant to consider in evaluating the other primary considerations – namely, the extent to which visa refusal is required to protect the Australian community and the expectations of that community.
114.In evaluating the significance of those other primary considerations, I have already concluded that the evidence does not justify a conclusion there is a substantial risk of future dishonesty, or other significant misconduct, by Mr Sun, despite the findings I have made in relation to his participation in the false visa applications. In coming to that view, I have not overlooked the fact that in these proceedings Mr Sun positively asserted his ignorance, not only of any irregularity in relation to his business visa application, but also of the fact that he had made a protection visa application. Sometimes the continued assertion of false claims in review proceedings before the Tribunal itself provides affirmative evidence of the applicant’s lack of good character and of the risk of future relevant dishonesty: see, for example, Re Fanchon and Minister for Immigration and Citizenship [2008] AATA 20 at [33]. However, it is necessary to recognise that there is a large, and critical, difference between disbelieving a witness’ evidence, on the one hand, and concluding that it was dishonestly given, on the other. There are well recognised cautions against any court or tribunal proceeding making such a finding merely on the basis of disbelief of the witness’ evidence in the proceedings: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268. I consider those cautions are particularly appropriate in the present case – where Mr Sun’s evidence was neither inherently incredible nor explicitly contradicted by objective evidence or other witnesses.
115.However, the findings I have made against Mr Sun should adequately serve to reinforce the message of general deterrence referred to in Ministerial Direction No. 21. Those findings emphasise the seriousness of Mr Sun’s conduct and the likelihood of them justifying a finding that such a person is not of good character. They also suggest that similar miscreants are at grave risk of visa refusal.
116.Furthermore, so far as the expectations of the Australian community are concerned, I consider that the Australian community, once fully informed of the relevant circumstances, would not regard a decision to grant the visa in the present circumstances as in any way permitting Mr Sun to benefit from irregularity in relation to a visa application. That decision, despite having the consequence of being favourable to Mr Sun personally, reflects only the best interests of his daughter and the interests of his Australian wife, in the light of the relevant “other considerations” that I have addressed in the preceding paragraphs.
117.The delegate’s decision to refuse the visa application was substantially based on the view that Mr Sun had pursued the application for Ministerial intervention on the basis of the “fear of persecution” claim that had been presented in the protection visa application. As I have pointed out, the available documents do not substantiate, indeed rather contradict, that suggestion. The correct position, as revealed by the available documents is that after March 2004, when he concedes he became aware of the nature of the protection visa application, Mr Sun thereafter placed no reliance on that claim, and pursued the intervention claim solely on the compassionate basis of seeking to avoid the requirement to separate from Ms Li and their daughter. In addition, no criticism is made of the accuracy or adequacy of the information contained in his current visa application.
118.Since September 2005 Mr Sun has lived in China with Ms Li (until November 2007). She speaks highly of his devotion as a spouse and father. His family and friends in China also attest to his loyalty, commitment and honesty. So, too, does his prospective Australian employer, Mr Wang. That evidence does not fully persuade me that the other primary considerations of protection and deterrence are of little weight in relation to Mr Sun. But, as a practical matter, it is difficult to see what more Mr Sun could do to provide evidence of his current good character and reformation.
119.Having regard to the totality of these considerations, I consider that the best interests of Sun Yu Xin, and the interests of Ms Li, favour the grant of the visa application. This is particularly the case having regard to the prospect of Mr Sun’s employment by Mr Wang and the financial impact that employment would be likely to have. Those considerations outweigh, in the particular circumstances of the present visa applications, the Australian community’s potential need for protection and the expectations the Australian community would ordinarily attach to visa application dishonesty.
DECISION
120.The decision under review is set aside and the application is remitted to the decision-maker for reconsideration with a Direction that the visas sought not be refused pursuant to section 501 of the Migration Act 1958.
I certify that the 120 preceding paragraphs are a true copy of the reasons for the decision herein of SM PW Taylor SC
Signed: .............[sgd]...................................................................
AssociateDates of Hearing 4 October, 20 and 21 December 2007
Date of Decision 26 February 2008
Counsel for the Applicant Mr M Shume
Solicitor for the Respondent Mr G Johnson, DLA Phillips Fox
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