Li and Minister for Immigration and Citizenship

[2007] AATA 1718

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1718

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2552

GENERAL ADMINISTRATIVE DIVISION        )

Re             Wei LI

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date31 August 2007

PlaceSydney

DecisionThe decision under review is affirmed.

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

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – partner visa refused to review applicant’s wife – Character test - visa applicant found to have committed serious breaches of immigration law and to have made false and misleading statements in connection with visa applications– visa applicant does not pass character test – Exercise of Discretion – Direction No 21 applied – visa applicant found to have actively sought out agents who were willing to lodge fraudulent visa applications – no evidence of recent good conduct to indicate reform - risk that the visa applicant would continue to act unlawfully and dishonestly if permitted to re-enter Australia found to be considerable – community would consider that a non-citizen with such a bad record of disregarding migration laws had forfeited any right to an Australian visa – best interests of the child considered – best interests of a child are served if the child lives with both parents, which could be achieved in this case by both parents living in China -  interests of the child found to favour the grant of a visa – other considerations – review applicant has compassionate claims making this a difficult case – on balance, community protection and expectations outweigh the best interests of the child and the other considerations – decision under review must be affirmed.

RELEVANT ACT/S:

Migration Act 1958 ss 234, 235, 499, 501

CITATIONS

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

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

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

Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780

Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246

Re Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22

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

Al-Kateb v Godwin (2004) 219 CLR 562

Re Barattini and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 157

Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474

Re Sorensen and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96

Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480

R v Immigration Officer at Prague Airport [2005] 2 AC 1

A v Secretary of State for the Home Department [2005] 2 AC 68

Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106

Calvin’s Case (1608) 7 Co Rep 1a

Joyce v DPP [1946] AC 347

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

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

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

Re Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107

Re Guo and Minister for Immigration and Citizenship [2007] AATA 1099

Su v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 681

Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240

Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617

OTHER REFERENCES:

Direction No 21

International Covenant on Civil and Political Rights

REASONS FOR DECISION

31 August 2007	Professor GD Walker, Deputy President
Summary

1. The review applicant applied for a review of a decision by the respondent refusing the grant of a combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa to his wife (the visa applicant) on the ground that she failed the character test in s 501 of the Migration Act 1958 (Cth) (the Act).

2. At the hearing, the applicant was represented by Mr Jinhui Ye, a migration agent, and the respondent by Ms Tessa van Duyn, solicitor of Clayton Utz instructed by Ms Debbie Hayer, for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. Mr Wei Li gave oral evidence in person at the hearing while the visa applicant, Ms Hai Yan He gave her evidence by telephone from China.  A Mandarin interpreter translated for the visa applicant.

3.      The issues in this case are:

(a) whether the visa applicant does not pass the character test in s 501(6)(c) because of her past and present general conduct within s 501(6)(c)(ii) of the Act and, if so;

(b) whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to refuse the grant of the spouse visa, applying ministerial Direction No 21

Relevant Law and Policy

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

…

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

…

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

the person is not of good character; …

…

5.      Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.

6.      That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

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

Basic facts

8.      The visa applicant Hai Yan He was born on 28 June 1979 in Fuqing city, Fujian, China, and is a citizen of that country.  She completed her primary, secondary and technical education in China and holds qualifications in computers and accounting.

9.      On 30 October 1997, she was granted a tourist (class TR) subclass 676 visa in the false name of Lie Jie Njuk on a false Indonesian passport (T pp86-93).  She arrived in Australia using that visa and passport on 6 September 1998 and a week later lodged an application for a protection (subclass 866) visa in her own name (T 55-66).

10.     On 27 November 1998, the department notified the visa applicant that her protection visa application had been refused (T pp99-100).

11.     On 15 December 1998, the visa applicant applied to the Refugee Review Tribunal (RRT) for review of the minister’s delegate’s decision to refuse her application for a protection visa.

12.     The RRT dismissed the appeal on 15 July 1999, and 28 days later the visa applicant became unlawful in Australia as the bridging visa associated with the RRT decision expired.

13.     A little under two months before the RRT decision, Ms He met the review applicant, Mr Richard Wei Li.  They began a friendly relationship in January 2001, which became intimate in July 2001.  They began to live together in a de-facto relationship in November 2004 and were married on 6 March 2005.  A daughter was born to them on 24 April 2005.

14.     Meanwhile, on 26 July 2000, Ms He lodged a further application for a protection visa in the false name of Enai He, using a false birth certificate obtained for the purpose from China (T p235).  That application was rejected on 18 September 2000.

15.     In January 2001, Ms He joined a migration class action in the Federal Court, but withdrew from it in March 2001 after the action had suffered a reverse in the High Court (T p234).

16.     The visa applicant departed for China on 10 October 2005, and on 12 October lodged an application for migration to Australia by a partner (form 47SP) for a combined partner (provisional) (class UF) and partner (migrant) (class BC) visa (T pp133-171).

17. Under s 501 of the Act, that application was refused on 23 November 2006 (T pp4-5) and on 14 December 2006, Mr Li applied to this tribunal for review of that decision.

The visa applicant’s evidence

18.     Ms He did not lodge a statement before the hearing in the normal way but in her oral evidence, adopted the statement lodged in connection with her spouse visa application (T pp195-196).  In it, she described how she left China for Indonesia on 23 August 1998, and while in Indonesia, she was given an Indonesian passport in the name Njuk Lie Jie by a contact of her agent in China.  She did not know the contact, and recalled only that he asked for her photograph and produced the passport within days, taking her (false) Chinese passport away from her at the same time.

19.     Using the Indonesian passport, she left for Malaysia and changed for a flight to Sydney, arriving on 6 September 1998.

20.     On 21 September 1998, she lodged a protection visa application in her true name.  She was subsequently interviewed in connection with that application on 10 November.  She stated that during the period from 27 November 1998 to March 1999, she was notified that her application had been rejected “and was being reconsidered” (presumably by the RRT).  During that time, she obtained a driver’s license and opened a bank account using the Indonesian passport and the false name in it.

21.     She also stated, somewhat confusingly, that she applied for the driver's license and bank card using her true identity, but that when she applied for permission to work, her Indonesian passport was taken by the Rockdale Immigration Office.  She was also notified that her “second review” (presumably the RRT appeal) had failed, and she was advised to depart from Australia within 28 days.

22.     She continued:

…

Fearing for my safety, I decided to stay in Australia despite the notification.  During this time, I worked from time to time.  And it was during May, I met my future husband, Wei Li at where I used to work.  A friend that I met in work place advised me on a migration agent who might help me in my case.  I also lodged an appeal for my protection visa refusal in the Federal Court, which was turned down (T pp195-196).

…

23.     The agent her friend had recommended suggested that she lodge another protection visa application under a different name, which she agreed to do, without fully appreciating the consequences.

24.     As requested by that agent, her family in China arranged for a false birth certificate in the name of Enai He (born 25 December 1979).  She lodged the second protection visa application in that name.

25.     After collecting her fee, that agent did not contact her about the second application and she heard nothing about its outcome.  Ms He had not contacted the agent since.

26.     During that time, she maintained a close relationship with Mr Li and in early November 2004, discovered that she was several months pregnant.  On receiving that news, they decided to live together and in January 2005 moved into different accommodation.  They married at Enfield on 6 March 2005.

27.     Their daughter Sophia was born at Auburn Hospital on 24 April 2005 and they decided to settle the visa applicant’s migration status as soon as possible.  Using her Chinese ID card, she applied for a travel document at the Chinese consulate and received it some two weeks later.

28.     As the baby was still too young to travel, the visa applicant remained in Sydney for another three months before flying back to China on 10 October 2005.

29.     At the hearing, Ms He explained that she had used another person’s passport in the name of Chen to travel from China to Indonesia where she had obtained another false passport.  She had paid for both passports.  Previously she had lived in the country with her parents, and friends had told her about Australia.  She did not know what documents to use to come here, and consequently thought it would be acceptable to use a false passport to “smuggle” herself to Indonesia.  She had not tried to come to Australia under her own name because, living in the country, she and her parents had not been aware that she could migrate as a student.  She did not know it was illegal, because she had just left school and did not know right from wrong.  If she had known it was illegal, she would not have done it.

30.     She had lodged her first protection visa application two weeks after her arrival because she had not known the situation in Australia – that she would not be able to work without a tax file number and a work permit.  Her agent told her that she would be able to work if she applied for a protection visa.

31.     She signed the protection visa application form and paid the agent, but he had lodged it.  Asked if she knew the protection claims contained on the application, she did not answer the question but replied that the agent asked her how she came to Australia and whether she was Christian.  She told him that she was, and he did the rest.

32.     Asked if she had applied for the protection visa in order to obtain a work permit because she was not permitted to work or study, she avoided answering once again and replied that she had come alone to Australia and that her parents had spent a great deal of money to send her.  When she arrived, she found she could not work and her family, having borrowed the money, were in financial difficulties.

33.     She admitted that she had given evidence at the RRT hearing to the effect that she feared religious persecution if she returned to China, explaining that those were the protection visa grounds prepared by the lawyer.  She said she had paid the agent, and he had made up the protection claims, but added rather inconsistently that he did not tell her what the grounds were.

34.     She had lodged the second protection visa application in a false name in July 2000 because she did not realise that it was a serious mistake.  She was illegal in Australia and continually afraid that she would be found, and worried about repaying the debt she had incurred.

35.     A friend suggested she contact the agent who prepared the application.  She paid the agent but did not ask what the contents of the application were.

36.     She admitted signing the second application form, as well as the declaration of the truth of its contents, but said that she did so because it was in English and the agent asked her to sign.  She knew the birth certificate was false.

37.     Ms He also admitted that soon after her arrival, she had applied for a New South Wales driver’s license in the name contained in the false Indonesian passport.  She did so, she said, because she had paid for the passport and it belonged to her.  She did not know it was illegal to use it to obtain a driver’s license or to open a bank account.

38.     When she obtained her first job, at the textile or knitting factory in Sydenham, she had a work permit and a tax file number in her own name.  They had been given to her pursuant to her protection visa application.  She realised that she had become illegal after the rejection of her RRT appeal.

39.     When she met Mr Li at the knitting factory, she was still working pursuant to her work permit.  Once she became illegal, her employer removed her from the position and she worked in other jobs, in restaurants and in fruit packaging.

40.     She admitted that she had been illegally in Australia for six and a half years but said she did nothing about it because there was nothing she could do.

41.     Her explanations as to how she had come to deal with the two agents in Sydney were somewhat inconsistent.  She said friends had recommended the first agent to her, but also said that other tenants in the building where she was staying had told her that agents advertised in the paper, and that was how she found him.  As regards the second agent, she said that she had been introduced to him by friends, but also said that she had obtained the agent’s name from the paper.  While the two versions are not strictly in conflict they are unlikely to have both been the operative reason.  She may well have seen agents’ advertisements, but is more likely to have acted on personal recommendations.

42.     When it was put to her that the delegate appeared to suggest that she might have made a point of finding out which migration agents would be prepared to lodge false or frivolous visa applications (T p11), she did not directly reply but said that she was ignorant at the time and did not know that she would break the law by using those channels.

Mr Li’s evidence

43.     In his oral evidence, the applicant adopted his statement dated 14 March 2007 (Exhibit A2).  In it, he related how he had known Ms He for six years before she returned to China.  When they lived at Marrickville, they used to attend the Anglican church there, where they performed general duties such as taking care of library books and projectors.  Ms He had always performed those duties quite willingly and enthusiastically.

44.     They also attended Bible study sessions.  She showed great interest in those studies as they were rarely offered in China.  It was through the church that they began to know each other better.

45.     At the knitting factory she was popular with the older women workers because she helped them when they were having problems with the knitting machines, such as when one of the needles broke.

46.     He spoke highly of her personal qualities of kindness and consideration.  Those were what had attracted him to her.  He had never doubted her general good conduct and believed her to be one of the best.

47.     Letting Ms He return to China with Sophia had been a difficult decision but one which he felt they had to make in order to correct what his wife had done in the past.

48.     He had come to Australia at the age of 17 and had spent eight years here.  During that time he had not returned to China.  He had completed high school, graduated from the University of Western Sydney and had become a store manager in a busy optometrist business in a Westfield shopping centre.  He had made many friends here.

49.     He was concerned about the effect that his absence as a father from his daughter’s life might have on her.  He believes that Sophia will have to return here, as she is in fact an Australian and this is her home, “no matter how unwelcoming and cold it is to her mother”.  He had “not exactly” known about her migration status while they were getting to know each other.  He was aware that she was not a student, but did not ask her about her situation because he respected her privacy.  He first learned that she was unlawful on 8 July 2001, the day after their relationship first became intimate.  She told him the full story, as that had been a major step in her life.  He learned about the visa, the passport, and the protection visa application and knew she was unlawful.

50.     He had been granted permanent residency as a skilled independent migrant on 10 December 2004.  At that time they were in a relationship but were not living together, but visited each other once or twice a week.  They had tried to avoid conception by calculating the operative dates, but realised in November 2004 that she was undergoing physical changes.  After having a test Ms He realised that she was pregnant.

51.     In his application for permanent residency, he had not declared that he was in a de facto relationship because they were not living together and their finances were not intertwined.  He did not think that the situation matched the official description of a de facto relationship.

52.     Asked if they had ever discussed the possibility of rectifying her residence situation, he replied that he was aware of the problem but was concerned about completing his studies, with the preparations for the marriage and on arranging where they would live.  Migration matters were not on their agenda.

53.     When it was pointed out to him that he had been in a relationship with her for three years before she became pregnant, he replied that he was naïve at the time and was busy with his studies and meeting financial needs.  They had not seriously discussed migration matters.  He knew her position was wrong but did not appreciate its seriousness.

Other evidence for the applicant and visa applicant

54.     The applicant tendered a statement by Ms Shui Ying Chen (Exhibit A7), a friend of Ms He’s.  She had met the visa applicant in 1999 at the knitting factory and found her quiet, helpful, kind and with a happy disposition.  She learned quickly how to operate the knitting machines and some basic maintenance techniques.  She would willingly help other workers in rectifying some basic malfunctions.

55.     Once she had found a gold ring in the women’s washroom, and instead of simply keeping it, she inquired around the factory to find the worker who had lost it.  At the Anglican church in Marrickville, she was responsible for the projector used for the singing sessions.  After lunch she often stayed behind to help wash the dishes.  She was well liked in the church group.

56.     Being from the same province as Ms He, she believes the living conditions for her and her daughter there are not comparable with Australia.

57.     In a statement made in March 2007 (Exhibit A6), Ms Yang Qing Ying said she had been a friend and classmate of Ms He’s at the accounting college they attended in 1995.  She had kept contact with her ever since.  She was a good student who made the most of her limited opportunities.  She has a real commitment to marriage and is a caring mother to Sophia.

58.     The applicant also tendered two character references relating to himself, from Ms Christine Han and Mr James Lee (Exhibits A3 and A4).  Mr Li’s character, however, is not in issue.

Applicant’s submissions

59.     The principal submissions were presented by Mr Li personally, the reply being delivered by the agent Mr Ye.

60.     Mr Li disputed the proposition that Ms He had no choice but to leave Australia in October 2005.  She could, he said, have remained here illegally and they would thus have not been separated.  Or she could have waited until she was older, or have had more children “and watched the money roll it”.

61.     By returning, however, she had shown her willingness to reform.

62.     He agreed that community expectations would be opposed to the use of false documents, but submitted that Ms He had realised that she had committed offences and was willing to reform.  There was much identity theft and fraud in Australia, but persons convicted of such crimes are eventually released from prison on the basis that they have reformed.  Ms He had not used the false identity for criminal purposes.  She is a faithful Christian who helps the church.  She has a background in accounting.

63.     He accepted that visa refusal could have a deterrent effect, but submitted that the intention of the policy is also to reduce the number of unlawful non-citizens in the community.  In a case such as this where there is a genuine willingness to reform, the visa applicant should be given a second chance.  Doing so would tend to draw other illegals out of hiding, and they would then go home.  Unlawful non-citizens do not pay tax.  They compete for jobs and medical care and sometimes become involved in crime.

64.     He is an only child whose father is now aged 57 and his mother, 55.  Both his parents are retired.  They have applied to migrate to Australia and the only solution is for them all to be reunited here.

65.     Ms He is currently living with her parents, who support her.  She has had little work experience in China for the past eight years and would find it difficult to obtain employment because she has to care for Sophia.  If her father were to become sick, there would be financial worries.

66.     His primary concern in relation to Sophia was not the availability of medical care, which is good in China’s coastal areas, but social trends developing in that country.  Despite China’s economic growth, there is an increase in crime, corruption and kidnapping for ransom.  If Sophia remains in China, she could be influenced by those social trends.  She is aged two and a half and imitates her surroundings, which made him concerned that she might be influenced.  He repeated that health was not his primary concern.

67.     The only realistic choice was for Sophia to come to Australia.  He had discussed the matter with his parents, and they had agreed that if they are successful in obtaining permission to live in Australia they will take care of Sophia here, if her mother has to remain in China.

68.     He stressed that they had not conceived a child in order to obtain a visa.  It had been accidental.  The conception had a big effect on them, strengthening their relationship.

69.     When their relationship started, he had not been fully aware of her migration status.  He later did become aware of it, but did not know the law that was applicable and did not want to break up the relationship.  At the time he had not realised the seriousness of her position.

70.     Mr Li said his only family in China is his parents.  If he were to return there he would have to give up his permanent residency and his career in Australia.  He would have serious problems in China, as he had come here at the age of 17 and learned everything the Australian way.

71.     His case was distinguishable from Re Braceros and Minister for Immigration and Multicultural Affairs [2001] AATA 145 (quoted at T p16), as in that case there had been two prior failed marriages and the marriage had been for migration purposes. Neither Mr Li nor his wife had been married previously. They had only the one child.

72.     Mr Ye in reply admitted that Ms He’s conduct had been serious, but noted that she had been aged only 19 at the time and the documents had been arranged by another.  She had relied on the agent, and the information she had given him was true.

73.     She had chosen to leave Australia for the purposes of her spouse visa application, but could have remained here illegally.  Many people who are in relationships do so.  The fact that she had departed constituted good conduct on her part.  Her general conduct had been good and she had no criminal record in Australia or China.  She was a reliable person, and a good wife and mother.  She had been a good student at school but had not been able to pursue higher education.  She regrets the choice that she made and the opportunities that she had lost, but she had declared her whole history and had not attempted to hide it.  She was a reformed character.

74.     Her conduct had not been of the most serious kind, and she had departed voluntarily and made full disclosure.  As there had been no other offences, the risk of recidivism was remote.

75.     On the issue of deterrence, he conceded that the Chinese community in Australia is close knit and that false protection visa applications by Chinese citizens are a systemic problem.  Visa refusal might have some deterrent value to persons offshore, but it would also show that disclosure, voluntary departure and reform would serve no purpose.  That would induce some people to remain in Australia unlawfully and would therefore not have the effect of preventing like offences.

76.     As an Australian citizen, Sophia had a right to grow up in Australian conditions.  Visa refusal would present Mr Li with a hard choice, as he is the family’s only provider.  Seeking employment in China with no certainty of obtaining it would be a strain on him.  As an Australian citizen (he has been approved and is just awaiting the ceremony) he would not be entitled to avail himself of social services in that country.

77.     Sophia has a strong relationship with her father, but if she were to come to Australia while Ms He remained in China, the separation from her mother might be bad for her development.

78.     As regards other considerations, the parties are in a genuine marriage and separation is a strain on both of them.  Mr Li has adapted to Australia and has never returned to China, which shows his strong bonds to this country.  His parents are also applying to migrate to Australia.

Application of the Law and Findings of Fact

79. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), the visa applicant passes the character test having regard to her past and present general conduct. The application of the character test is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

…

The concept of “good character” in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:

…

The character test, therefore, requires an objective consideration of the applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

…

80.     On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a simple adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781).

81.     As Senior Member Ettinger has said, “There must be an honesty and integrity amongst visa applicants on which the authorities can rely so that they are treated fairly and that their claims are assessed by the same standards” (Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246, paragraph 17).

82. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the visa applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

83. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

84.     Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

85.     In this case the applicant has, in connection with an application for a visa, presented a false Indonesian passport in the name of Lie Jie Njuk and a false birth certificate in the name Enai He in contravention of s 234(1)(a) of the Act.

86.     She has made, or caused or permitted to be made, statements that were false or misleading in her applications for a tourist visa in the false name of Lie Jie Njuk, a protection visa lodged on 14 September 1998, an RRT review of the decision refusing the grant of that visa, and a further protection visa in the false name of Enai He lodged on 26 July 2000 in breach of s 234(1)(b).

87.     She was an unlawful non-citizen in Australia for a period of approximately six and a half years, and during the periods in which she was unlawfully in Australia she worked without permission in breach of s 235 of the Act.

88.     She also applied for a driver’s license and opened a bank account in the false name Lie Jie Njuk.

89.     Her references contain tributes to her good character, but in areas other than migration law.  Mr Li speaks warmly of her as a wife and mother but, as I note below, she took a rather manipulative approach to him in the developing stages of their relationship.

90.     I find that the visa applicant has committed breaches of immigration law and has made false or misleading statements in connection with visa applications within the contemplation of paragraph 1.9 of Direction No 21.  She seeks to assign much of the blame to her then migration agents.  But as Deputy President Purvis pointed out in the analogous case Re Grech and Minister for Immigration and Multicultural Affairs [2001] AATA 22, at para 52, the applications were made by the visa applicant, she was a party to the making of the false submissions and maintained their falsity through the various stages that she sought to pursue. It is not open to her to claim ignorance of the position that she was maintaining.

91.     There is no evidence of recent good conduct indicating that her character may have reformed, and indeed the evasions, inconsistencies and implausibilities in her evidence at the hearing suggest the contrary.  Her expressions of regret must therefore be viewed as largely tactical.  Her record of migration law violations is serious in itself, and the applicant’s character in a migration sense is central to these proceedings.  But on the evidence it seems likely that she has infringed tax law and areas of State legislation as well.

92.     Mr Ye argued that the tribunal should give weight to her good conduct in coming forward to the department for the spouse visa application when, as he put it, she had the option of remaining in Australia illegally.  But that was not a permissible option.  If refraining from committing further breaches of the law can be viewed as laudable, it is certainly not good conduct of a high order.

93. On the basis of all the evidence I find that the visa applicant does not pass the character test by reason of her past and present general conduct within the meaning of s 501(6)(c).

94. Having so decided, I must then consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to the visa applicant. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

…

95.     Paragraph 2.3 sets out the primary considerations:

…

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

…

Paragraph 2.4 explains:

…

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

…

96.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (c) serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”.  Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

97.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or similar offence”.

Protection of the Australian Community

98.     The first issue to be discussed under this heading is the seriousness and nature of the conduct.  It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act.  The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious.

99.     In this case the visa applicant engaged in sustained unlawful conduct over a period of years in connection with entering and remaining in Australia.  She left China under a false name with a false Chinese passport and arrived in Australia under a different false name with a false Indonesian passport.  She lodged two protection visa applications on false grounds, one under her own name and the other under yet another false name.  She remained illegally in Australia for six and half years and during that time worked illegally while evading income tax.

100.   The visa applicant argued that she was only 19 when she left China and did not know the difference between right and wrong.  But she was not a juvenile, and as she had completed accounting qualifications it is clear that she is endowed with above average intelligence.  Further, as Deputy President Handley observed in Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065, Fujian province, from whence Ms He comes (T pp55, 58), is a notorious marketplace for bogus passports.

101.   Furthermore, her pattern of unlawful conduct was sustained over years, in to her mid-twenties.  She says she would not have participated in the scheme if she had known illegality was involved, but it is impossible to believe that she was unaware that the use of false passports is prohibited in every country. 

102.   Nor can her claim that she thought it was permissible to apply for a driver’s license and open a bank account in a false name because the name was in her false Indonesian passport and she had paid for it be regarded as plausible.

103.   She attempts to portray herself as the victim of unscrupulous migration agents at every stage.  But her evasive and ambiguous replies when asked if she had actively sought out agents who were likely to lodge fraudulent applications, coupled with her pattern of reliance on corrupt agents in China, Indonesia and Australia, and her ambiguous answers to questions about how she came to employ the two corrupt agents in Sydney, lead me to conclude that she engaged such agents intentionally and for the purpose of achieving a migration outcome to which she was not entitled.

104.   The visa applicant’s pattern of unlawful behaviour is egregious even by the standards of this type of case.  Her conduct can only be viewed as very serious.

105.   The next issue for the tribunal to consider is the risk of recidivism.  The respondent submits that the visa applicant has demonstrated a willingness to disregard Australian laws, and in particular the Australian migration system, and that there is a considerable risk the visa applicant will continue to act unlawfully and dishonestly if she is permitted to re-enter Australia.

106.   The visa applicant’s record of failure to be fully honest and frank, and of engaging in active deceit, with the Commonwealth extends over nearly a decade, from her arrival in 1998 on a false passport through her use of three false names, two false passports, a false birth certificate and other identity documentation.  As the respondent points out, her fraudulent activity has not been limited to dealings with the department but extends to other areas of federal and State law, including tax legislation.  Her evasive, implausible and at times inconsistent answers on material matters at the hearing suggest that there has been no rehabilitation.  Her professions of regret and remorse must be treated with some reserve.  Her regret appears to relate more to the consequences of her actions than to the actions themselves.

107.   She made no attempt over a period of several years to regularise her situation and disclosed her wrongdoing only when it was pointless to deny it.  She left Australia voluntarily, but only because she had exhausted all other viable possibilities for remaining.  The suggestion by Mr Li and Mr Ye that she could instead have chosen to remain illegally, and perhaps have more children, is anything but impressive.

108.   The evidence thus points to the conclusion that there is a significant risk that if granted a visa Ms He would again infringe the law in her dealings with federal, State or private bodies.

109.   In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  Mr Li and Mr Ye sought to discount that factor, and argued that visa refusal might have the opposite effect.  It is true that the deterrent effect of a particular decision is impossible to prove in advance.  The concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.

110.   Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.

111.   Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 that “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort” (at 659).

112.   On the question of deterrence, Mr Ye conceded the point made by the delegate in his reasons (T p11) that the Chinese community is close-knit, with its own ethnic associations, newspapers and networks and the outcome of decisions in cases such as this one are passed around within the community and also between some unscrupulous migration agents.  “It is through such community networking that people in situations such as Ms He find out which migration agents are prepared to lodge false or frivolous visa applications in order to prolong their stay in Australia” the delegate said (T p11).

113.   He also noted that:

…

Ms He’s approaches to agents prepared to assist her with a PV application based on false claims, and in one case in [sic] a false identity using a bogus Chinese birth document, were unlikely to be accidental.  Advice of who these agents are is usually obtained from others within the same ethnic community (ibid).

114.   For the reasons given above, I am satisfied that Ms He did in fact actively seek out agents who would be willing to lodge fraudulent applications.  In that context, I note the views of Deputy President the Hon CR Wright in Re Barattini and Minister for Immigration Multicultural and Indigenous Affairs [2005] AATA 157 at para 38:

…

From the perspective of general deterrence, I take the view that people, whether in the Philippines or elsewhere, who become aware of a consistent approach by decision-makers refusing to reward bad cases of deceptive and misleading misconduct with visa approval, are likely to be deterred by such knowledge… It is often submitted to me that intending visa applicants are unlikely to become aware of the outcome and the reasons for such an outcome in an individual case … I do not accept such arguments.  If a consistent approach is manifested by the Tribunal in such cases, migration agents and solicitors will soon pass the news on to their customers or clients, and I suspect the ethnic grapevines serve a similar purpose.

…

115.   Wright DP’s reference to “ethnic grapevines” draws support from the evidence referred to in Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474 at paras 104-105 and Re Sorensen and Minister for Immigration and Multicultural Affairs [2006] AATA 96 at para 29 relating to the operation of migrant information networks on general deterrent effects.

116.   Also relevant are the remarks of Deputy President Chappell in Re May and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 480 at para 84:

…

The Australian community has every reason to send a very strong deterrent message to any such non-citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.

…

117.   General deterrence must therefore be regarded as a factor to be taken into account in this case, although not a decisive one.

Expectations of the Australian Community

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

…

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

…

119.   A long-standing principle of international law provides that individuals do not have a right to immigrate, and that general immigration decisions lie in the discretion of the state concerned (I.A. Shearer, Starke’s International Law, 11^th edn. Sydney 1994, 314-315; I Brownlie, Principles of International Law, 5^th edn. Oxford 1998, 552).  That principle is implicitly confirmed by international human rights treaties.  For example, the International Covenant on Civil and Political Rights prohibits only the arbitrary deprivation of a person’s right to enter his or her “own country” (Art. 12.4).  It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  There are many reasons for that, including the obvious point, as made by the Swedish economist Johan Norberg, that a welfare state cannot have open borders (“In defence of global liberalism”, Policy, winter 2006, 43, 47).

120.   There is also a long-standing basis for it in legal doctrine.  As Lord Bingham of Cornhill observed in R v Immigration Officer at Prague Airport [2005] 2 AC 1 at [11], “The power to admit, exclude and expel aliens was among the earliest and most widely recognised powers of the sovereign state”. The power remains “undoubted” (A v Secretary of State for the Home Department [2005] 2 AC 68 at 78). Hayne J expressed a similar view in Al-Kateb at 632.

121.   In Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 at para 19, the Full Court of the Federal Court opined that the statement in the Direction that the community “expects non-citizens to obey Australian laws while in Australia” (para 2.12) “is a truism which applies equally to citizens as to non-citizens”. That, with respect, is undoubtedly true, but the authors may have had in mind an older principle. The protection of foreigners within the realm is formed on a venerable constitutional maxim of reciprocity: presence within the realm entitles foreigners to the protection of subjects but entails the obligations of subjects (J Finnis, “Nationality, Alienage and Constitutional Principle”, (2007) 123 LQR 417, 418).  The reciprocity principle was articulated in 1608 by Coke, with the Lord Chancellor and almost all England’s judges in Calvin’s Case (ibid; (1608) 7 Co Rep 1a at 5a; Joyce v DPP [1946] AC 347 at 366). It has a status of a constitutional principle (Finnis, ibid).

122.   At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]).

123.   In my view, the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it.  This application, like all such cases, must be decided on its own facts.  On the evidence in the present case, I consider that community expectations weigh against the grant of a visa to the visa applicant who has engaged in such consistent and sustained abuse of the migration system.

124.   There is little doubt that the community would consider that a non-citizen with such an extremely bad record for disregard of migration legislation and other areas of law had forfeited any right to an Australian visa.  On the other hand, they would be concerned about the position of a young child who is the innocent victim and would expect the child’s welfare to be the subject of close consideration.  To that matter I now turn.

The Best Interests of the Child

125.   The third primary consideration is the best interests of the child.  The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

126.   Sophia, the daughter of Ms He and Mr Li, was born in Australia in April 2005.  Now aged two and a half, she has spent all but the first six months of her life in China with her mother and her maternal grandparents.

127.   The respondent accepts, as I do, that the best interests of a child are served if the child lives with both parents.  The respondent contends, however, that that goal could be attained by the family living together in China.  The minister notes that the families of both parents are still in China, that there would be no language or cultural barriers to both parents returning there, that Sophia could adapt quickly to life in China and that there is no evidence to suggest that Mr Li could not work and support his family in that country.

128.   In relation to the standard of health facilities and education services in China, the respondent relied on my observations in Re Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107, at para 67.

129.   The respondent also pointed out that in Re Su and also in Re Guo and Minister for Immigration and Citizenship [2007] AATA 1099, the seriousness of the visa applicant’s conduct had been found to dictate that the factors of community protection and expectations should outweigh the best interests of the child.

130.   Mr Li is reluctant to leave his developing career in Australia to pursue what he regards as the uncertain prospect of finding suitable employment in China.  In any event, he would prefer his daughter to grow up in Australia, not so much because of any concerns about medical services, which are improving rapidly, but because of what he sees as destructive social trends in China, such as the growth of crime, corruption and kidnapping.

131.   There is no evidence before the tribunal about Chinese crime rates, or the incidence of kidnapping.  On the other hand, while kidnapping is virtually unknown in Australia, criminality is a problem here too.  (Crime rates in Australia are quite high by developed world standards: see, eg, D Farrington, P. Langan, M. Tonry eds., Cross-National Studies in Crime and Justice, US Bureau of Justice Statistics, Washington DC 2004, (iv)-(xiv).  Australian rates are now reportedly higher than those in the United States for all crimes except murder.  Since the 1990s American crime rates have been falling sharply, whereas Australia’s have continued to rise (P Saunders, K Tsumori, Poverty in Australia: Beyond the Rhetoric, Sydney 2002, 79)).  The ready availability of narcotics to teenagers is also a source of constant worry to all parents. According to the World Health Organisation website ( Australia stands in the worst of four possible rankings as regards the burden of disease due to illicit drugs. China is in the second best.

132.   As an Australian citizen, Sophia would not receive free education in China, although of course in Australia many parents choose to pay for their children to attend private schools.  Nevertheless, it can be presumed that Sophia would have a more comfortable life in Australia and that Mr Li would find it easier to meet her needs in this country than in China.

133.   The other option is that Sophia joins Mr Li in Australia.  Given her ineligibility for free education and health care in China, coupled with his concerns over social developments in that country, bringing Sophia to Australia is the only practicable course, Mr Li submitted.  But it would have the undesirable effect of separating her from her mother.

134.   In his evidence in chief, Mr Li said that he had discussed that option with his parents when they were recently visiting Australia, and with his wife by telephone.  It was agreed that if his parents are successful in obtaining contributory parents migration visas, they will take care of her in Australia.

135.   In his oral submissions, Mr Li stressed that he and Ms He did not have a child for the purpose of strengthening their case for a visa.  It had been purely accidental.  The birth of their child had, however, exerted a major impact on them and had strengthened their relationship.

136.   It is reasonable to conclude that the best interests of the child would be served by allowing her to live with both her parents in Australia.  Failing that, she could be reunited with both parents if Mr Li were to move back to China, but he is reluctant to do that because among other things he is not confident that he would be able to obtain suitable employment.  If Ms He is not granted a visa, Mr Li would prefer that the child be brought to Australia and cared for by his parents.

137.   That option is far from ideal, but it is workable.  Today many children are raised wholly or partly by their grandparents as a result of divorce or employment commitments.  There is no evidence to suggest that Mr Li’s mother and father, aged 55 and 57 respectively, would be unsuitable carers, and they are willing to undertake the responsibilities involved.  There is no obstacle to Sophia’s visiting her mother in China or in due course spending school holidays with her.

138.   In my view, the interests of the child favour the grant of a visa, but Mr Li’s preferred available alternative is a practicable one.  If Mr Li’s parents’ visa applications are unsuccessful, the option of family reunification in China is also an acceptable one, despite Mr Li’s trepidation about job-seeking.  There is no evidence to suggest that he would not be employable in a suitable position in China, given that he is well qualified, articulate, personable and energetic.  His excellent English skills would be an advantage in the rapidly growing economy of that country.

Other considerations

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

140.   There is no evidence that Ms He has any business, family or other ties to the Australian community apart from Mr Li.  His family also are in China.

141.   Mr Li stated that he had not been fully aware of Ms He’s migration status when the relationship began, and when she did tell him about it in July 2001, he had not fully realised the seriousness of her legal position.

142.   Ms He did not tell Mr Li about her migration position until she had known him for two and half years, during the last six months of which they had been going out together on a boyfriend-girlfriend basis.  She refrained from informing him until the relationship had become intimate, possibly calculating that, by that stage, he would consider he had some sort of commitment to her and would try to help solve her problems rather than walking away from them.  To that extent, she may have manipulated him, but it is not disputed that today the marriage is a genuine one.

143.   Nevertheless, Mr Li was aware of her situation at the outset of their de facto relationship and almost fours years before their marriage.  He said that he was not fully aware of how serious her situation was, but as a non-citizen himself, Mr Li can be taken to have had a general knowledge of migration matters.

144.   The applicant tendered references attesting to the visa applicant’s good character.  That evidence was not contradicted, but it relates to other facets of her personality rather than to her behaviour in a migration sense, which is central to the case.  It is not hard to believe that the visa applicant has a good side, but her conduct in relation to migration law is egregiously bad.

145.   There is no evidence of rehabilitation, and indeed the evasions, contradictions and implausibilities in her evidence at the hearing point in the contrary direction.

146.   Mr Li has compassionate claims arising out of his separation from his wife, but the respondent pointed out that in Re Su, an awareness that the visa applicant might not be able to live in Australia lessened the weight of the review applicant’s compassionate claims.  That decision was upheld by the Federal Court in Su v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 681.

147.   The respondent also pointed out that in Re Su the factors of protection of the Australian community and the expectations of the Australian community outweighed the best interests of the child, and it was not the only case to reach that conclusion (see Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240; Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617 at paras 36-39).

148.   There is no doubt that this is a difficult case.  On balance, however, I conclude that any considerations of community protection and expectations outweigh the best interests of the child and the other considerations.  The decision under review must be affirmed.

I certify that the 148 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   .............[sgd]...............................................................
               R. Wallace, Associate

Date/s of Hearing:  5 July 2007
Date of Decision:  31 August 2007

Representative for the Applicant:  Mr Jinhui Ye, migration agent

Solicitor for the Respondent:        Ms Tessa van Duyn, Clayton Utz