Li and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 841
•31 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 841
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/1083
GENERAL ADMINISTRATIVE DIVISION
Re: QING LI
Applicant
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 31 August 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
MIGRATION ‑ spouse visa ‑ refusal ‑ breach of migration laws ‑ character test ‑ exercise of discretion
Migration Act 1958 ss 234(1), 499(1), 499(2A), 501(1), 501(6)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
ReBeale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Re Choy and Minister for Immigration and Multicultural Affairs [2001] AATA 962
Re Evans and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 896
Re Fox and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 195
Re Grigorian and Minster for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648
Re Kirk and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 244
Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Ly and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 565ReMcCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
31 August 2005 G.D. Friedman, Senior Member
1. This is an application by Qing Li (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 14 August 2004 to refuse to grant a spouse visa to the applicant’s husband Yun Guang Lin (the visa applicant).
2. At the hearing on 12 August 2005 Mr P. Dinning, solicitor with Baker and Armstrong, represented the applicant and Ms C. Petre, solicitor with Clayton Utz, represented the respondent. An interpreter in the Mandarin language assisted the Tribunal.
3. The Tribunal had before it the documents lodged under s 37 of the Administrative Appeals TribunalAct 1975 (the Act) (T1‑T26 and supplementary documents T1-T22) and ten exhibits (Exhibits A1‑A10) lodged by the applicant.
BACKGROUND
4. The visa applicant was born on 22 February 1978 in Fujian, China. He arrived in Australia on 29 February 1996, on a false passport, on a short stay business visa (subclass 456) which expired on 29 March 1996. On 28 April 1999 the visa applicant applied for a protection visa. On 4 May 1996 he was granted a bridging visa until the outcome of his application. On 18 May 1999 a delegate of the respondent refused the application and the visa applicant applied to the Refugee Review Tribunal (RRT) for review.
5. On 10 December 1999 the RRT affirmed the delegate’s decision. On 19 January 2000 the visa applicant’s bridging visa expired. On 6 April 2000 the visa applicant was placed in immigration detention and was found to be in possession of a second false passport. On 11 April 2000 he was released on a bridging visa, with a condition that he depart from Australia on 2 May 2000.
6. On 3 May 2000 the visa applicant joined a class action and was granted a bridging visa. On 21 March 2001 he requested Ministerial intervention in relation to his protection visa application. On 26 March 2001 the class action was finalised. On 18 June 2001 the Minister refused to exercise his discretion to intervene. On 2 July 2001 the visa applicant’s bridging visa expired. He subsequently became an unlawful non‑citizen.
7. The applicant was born on 20 November 1979 in Shanghai, China, and arrived in Australia on 6 October 1999 on a student visa. In 2002 the applicant and the visa applicant met in a factory, and the visa applicant opened a noodle shop in Melbourne. They commenced a relationship and began living together at the end of 2002. In early 2003 they opened a noodle shop in Sale, Victoria. They married on 23 April 2003.
8. On 29 August 2003 the visa applicant was detained by immigration authorities and on 17 September 2003 he was removed to China. On 3 October 2003 the applicant travelled to China, and the couple has been living in Shanghai since then.
9. On 5 November 2003 the visa applicant applied for a Spouse (Provisional) visa subclass 309 (spouse visa). On 14 August 2004 a delegate of the respondent refused the application on character grounds. On 21 September 2004 the applicant applied to the Tribunal for review of the decision.
10. The issue before the Tribunal is whether the visa applicant passes the character test in the Migration Act 1958 (the Act), and, if not, whether the Tribunal should exercise its discretion to refuse his application for a spouse visa.
EVIDENCE
11. In a written outline of evidence dated 11 May 2005 (Exhibit A10) the visa applicant stated that his family was poor during his early years, and his mother wanted him to further his education. He stated that 18 months after attending high school his mother decided that he should study in Australia, and on 19 February 1996 he was told that arrangements had been made for him to travel to Sydney. The visa applicant said that he had no knowledge of Australia or of travel requirements such as visas and passports. He said on 22 February 1996 family members took him to Guangzhou and then to Hong Kong, where he was given a passport and an airline ticket by a friend of his cousin. He said that the passport contained his photograph but not his name or date of birth.
12. The visa applicant stated that on arrival in Sydney he was kidnapped by armed men who held him in a hotel until he was released six days later. He said that he contacted his mother, who told him she had paid a ransom but he should not contact police or seek to return to China. He travelled to Melbourne and stayed with a friend before finding accommodation and employment at a bakery. He said that his mother sent him a replacement passport which he assumed to be valid. He stated that he was granted a business visa and knew he was not permitted to work, but he had no other means of survival. He remained at the bakery until 1999 and sent money to his family regularly, to repay the ransom. In relation to operating the noodles shops, the visa applicant said that he believed that running a business was not working for the purposes of his business visa conditions.
13. In a supplementary written outline of evidence dated 5 August 2005 (Exhibit A2) the visa applicant stated that in April 1999 he signed an application for a protection visa which was lodged on his behalf. He said he had no understanding of the nature or requirements of the protection visa, and was not made aware of the claims made in the application. He said that he subsequently discovered that the claims were false. He said he had no knowledge of the proceedings before the RRT.
14. In relation to a record of interview with officers of the Department of Immigration, Multicultural and Indigenous Affairs (the department) on 6 April 2000, the visa applicant said that he gave a false reason for remaining in Australia unlawfully, but that he was told to give that answer by someone he met. He stated that he was young and did not understand the significance of making such a statement. He said that he deeply regrets not telling the truth, but was ashamed of being kidnapped and sent away from his home in China against his will.
15. In a written statement dated 1 November 2004 (Exhibit A4) the visa applicant said that after he was kidnapped he was told that his family had paid $US40,000 for his release. He said that he enjoyed living in Australia and obtained the services of a solicitor to make various applications on his behalf. He stated that he was reporting to the department weekly for one year, but then missed one appointment and was not able to face the authorities so he no longer attended, which he regretted afterwards.
16. The visa applicant said that he loves his wife very much and she has encouraged him to undertake further study in China. However, he stated that the marriage is under pressure because of differences in family backgrounds, and there would be less pressure in Australia. He said that they remain committed to each other and would like to resume business activities in Australia.
17. In oral evidence the visa applicant stated that he had no role in the decision to leave China, and was a naïve 17‑year‑old. He acknowledged that there were some inconsistencies and false statements in various documents signed by him, but explained that he relied on other people, whom he did not know, because of his lack of English and knowledge of immigration rules, and nobody told him to tell the truth. Under cross‑examination he explained that he had no knowledge of the identities of the persons who kidnapped him or how they identified his mother for the payment of the ransom, and was afraid of them. He stated that his family told him to remain in Australia after the ransom was paid, and confirmed that he told the applicant about his background and immigration status several months after they met.
18. In a written outline of evidence dated 11 May 2005 (Exhibit A1) the applicant confirmed the details given by the visa applicant concerning the circumstances of their meeting and later marriage. She stated that life for the visa applicant has been difficult in China, particularly in relation to finding a good job and starting his own business. She said that he is employed and works hard and wants to be in a position to look after her, particularly as her family does not approve of her marriage to him and has not supported them financially.
19. The applicant stated that she loves the visa applicant and wants to resume their life in Australia by returning to Sale and re‑establishing their business. She said that they would like to have two children, and this is not permitted in China. She also stated that she believes the visa applicant to be a hard‑working person of good character who has not broken the law other than immigration law, and that he was very young and did not understand the law at the time. She noted that when in Australia the visa applicant looked after her and sent money to his mother.
20. In a further written document dated 25 November 2004 (Exhibit A7) the applicant described the visa applicant’s background in China and the circumstances of his arrival in Australia in 1996. She said that he is a responsible and diligent man who worked hard at his businesses in Melbourne and Sale, paid taxes in Australia and provided job opportunities. She stated that the visa applicant’s seven‑year absence from China has made it difficult to commence any new business ventures in China due to the lack of contacts. The applicant said that she has encouraged him to undertake further study, and he is making a genuine effort to improve his prospects.
21. In oral evidence the applicant stated that she holds a permanent skilled migration visa and plans to return to Australia, even if this application is unsuccessful. She said that she is now employed as an accountant in Shanghai and the visa applicant is studying hospitality. Under cross‑examination she agreed that she became aware of the visa applicant’s immigration status and his breaches of immigration laws shortly after they met, and they planned to visit the department to discuss his situation but that they couldn’t make it. In relation to the kidnapping she agreed that she had hired a private investigator but he had been unsuccessful in his inquiries (Exhibit A9). The applicant said that the education system is better in Australia than in China, and the visa applicant could learn English quickly and then attend university here.
22. In a written outline of evidence dated 11 May 2005 (Exhibit A3) Zhou Meixiang, the visa applicant’s mother, stated that it was her decision to send the visa applicant to Australia to study because she believed that a good education in Australia would improve his opportunities, and she had to act quickly because she believed that the Australian Government was accepting Chinese migrants at the time. She stated that she relied on her brother‑in‑law to make the necessary arrangements. In relation to the kidnapping she said that she found out about it two days after the visa applicant arrived in Australia, and that she paid a ransom of $US40,000 for her sons release. She also said that she sent the visa applicant $30,000 to help him establish the noodle shop, and sent him a replacement passport in the belief that it was genuine. Ms Zhou said that she fears that the applicant will leave the visa applicant and return to Australia if his application is unsuccessful.
23. In oral evidence Ms Zhou said that the visa applicant has never been in trouble in China. Under cross‑examination she agreed that she relied on relatives for all arrangements for the visa applicant’s travel to Australia, and had been unaware of the immigration requirements. She said that she did not know the identity of the kidnappers, and had to borrow most of the money that she paid as ransom.
24. In a letter dated 3 December 2004 (Exhibit A5) Yau Sho Ng, Liping Chen, Lusi Liu, Qi Chen, Tchiap Lim and Tat Chi Li stated that they have known the visa applicant for more than five years and consider him to be of good character. They described him as honest and kind‑hearted, and someone who always does his best to help those in need. They stated that they believe he can make a contribution to Australia.
25. In a letter dated 26 November 2004 (Exhibit A6) Hongjian Chen said that he has known the visa applicant since the visa applicant arrived in Melbourne. He said the visa applicant stayed with him for three weeks before he started work at the bakery. Mr Chen stated that had heard about the kidnapping and that the visa applicant’s family had paid a lot of money to help him. Mr Chen described the visa applicant as a hard-working person who is clever and generous, and that the visa applicant would have a bright future if allowed to return to Australia.
CONSIDERATION OF THE ISSUES
26. Under s 501 of the Act:
501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; or
…
Otherwise, the person passes the character test.
27. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
28. On 23 August 2001 the Minister, exercising powers under s 499(1) of the Act, issued Direction N° 21, Visa Refusal and Cancellation under s 501 (Direction 21), which provides guidance to decision‑makers in making decisions to refuse or cancel a visa under s 501 of the Act, including in the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
29. Paragraph 1.9 of Direction 21 provides:
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
…
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non‑citizen ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country…
30. Paragraph 2.2 of Direction 21 provides:
2.2 …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.
Paragraph 2.3 of Direction 21 sets out the primary considerations:
2.3 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.
31. Examples of the matters that the Government views as serious offences are set out in paragraph 2.6 of Direction 21. These include 2.6(c) …presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.
32. Paragraph 2.8 of Direction 21 states that when exercising discretion, decision‑makers must take into account… any relevant factors provided by the non‑citizen as mitigating factors.
33. Paragraphs 2.10 and 2.11 of Direction 21 refer the decision‑maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence, that is, the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
34. Paragraph 2.17 of Direction 21 states that, when considering the issue of visa refusal or cancellation, other considerations may be relevant, although they will generally 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; the degree of hardship caused to immediate family members; the family composition of the non‑citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.
35. Mr Dinning submitted that the Tribunal should not find that the visa applicant is not of good character. He referred to Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 in which the Full Federal Court stated at paragraph 8:
…The concept of “good character” in s 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 his enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.
He said that the Tribunal needs to consider the particular circumstances of the visa applicant at the time of using a bogus document to travel to Australia. He noted that the visa applicant was then 17 years of age; had never been out of his home province in China; could neither speak nor write English; had no knowledge of immigration procedures; was not involved in the arrangements to enter Australia; had never seen a passport; was forced to come to Australia; and had no idea that the passport could not be used to enter Australia.
36. Mr Dinning referred to Re Grigorian and Minster for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648 in which Deputy President Purvis stated:
34. It is also true and worthy of mention that there is a clear responsibility on an applicant for a visa to enter Australia to ensure that information submitted to the Respondent is true, complete and correct. However, if it be the position that with good reason an applicant believed the information to be correct and did not seek to obtain an advantage by use of information subsequently shown to be incorrect, then there might well not be an adverse reflection cast upon his or her character.
Mr Dinning submitted that the issue is whether the visa applicant was aware of the falsity of the passport, or should have been aware of its falsity. He added that the fact that the visa applicant entered Australia on a passport in the name of another person who was 38 years of age indicates that the visa applicant had no idea he was doing anything wrong.
37. In relation to the second passport, Mr Dinning said that the passport was provided by the visa applicant’s mother. The passport had the applicant’s name, photograph and date of birth, and he was assured by his mother that the document was genuine. He said that similar considerations applied to the grant of a business visa.
38. Mr Dinning did not dispute that the visa applicant worked for a period of time when he was aware that his protection visa did not allow him to work, that he failed to report to the Department on a weekly basis in 2001, and that in various applications he signed documents that contained inaccurate information. Mr Dinning submitted that the immigration history of the visa applicant is not, in itself, sufficient to find that the visa applicant is not of good character (Re Choy and Minister for Immigration and Multicultural Affairs [2001] AATA 962 and Re Evans and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 896). He said that the decision to work was not a blatant disregard for immigration laws but a desire to repay the money outlaid by his mother, a need to survive in Australia after being abandoned by his family and a mistaken belief that operating a business was not working.
39. In respect of the exercise of the Tribunal’s discretion, Mr Dinning submitted that if the Tribunal finds the visa applicant is not of good character, it should exercise the discretion in the applicant’s favour. Mr Dinning acknowledged that the visa applicant signed documents that contained inaccurate information, but pointed to a lack of understanding by the visa applicant of the immigration processes, and his reliance on migration agents and others.
40. Mr Dinning said that the visa applicant has no criminal record in Australia or China and poses no risk to the Australian community. He stated that the visa applicant is in a stable marriage; has demonstrated business skills that are beneficial to Australia, and he paid taxes while working in Australia. Mr Dinning said that the Australian community would expect that in the circumstances the breaches of immigration laws were not of such severity that would prevent the exercise of the discretion (Re Fox and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 195; ReMcCowliff and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 805; Re Kirk and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 244; and Re Ly and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 565).
41. Ms Petre submitted that, in regard to the visa applicant’s general conduct, the Tribunal should take into account that he entered Australia on a false passport in 1996; he obtained a second false passport while in Australia; he applied for a protection visa, merits review, judicial review, ministerial intervention and a spouse visa on the basis of false and misleading statements; and made false statements to immigration officials in 2000 and 2003. She said that in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court considered the term past and present general conduct and stated at 195:
…
That leaves for consideration just what is meant by "general conduct" when, in the same context, this expression is used to distinguish conduct that is not "criminal conduct". In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading of "general conduct", is conduct in general. The root meaning conveyed by the adjective "general", as is made clear by The New Shorter Oxford English Dictionary (1993), is the idea of universality. In s 501(2), it expresses a contrast with the particularity inherent in the reference to "criminal conduct". We do not think there is any warrant for extracting, from the broad word "general", a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly…
She said that in Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192 the Tribunal applied Goldie and Baker and determined that the character test requires an objective consideration of the applicant's enduring moral qualities, but not a requirement that the visa applicant meet the highest standards of integrity.
42. Ms Petre noted the visa applicant’s actions as described above and said that there were no countervailing factors. Therefore, the visa applicant does not pass the character test as a result of his past and present general conduct (Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984). She said that the visa applicant’s conduct should be viewed against the need for honesty and integrity by applicants, to ensure that all applicants are treated fairly and that their claims are assessed by the same standards.
43. In respect of the exercise of the discretion concerning protection of the Australian community, Ms Petre submitted that the visa applicant presented a false or forged passport when entering Australia and presented a second false passport when applying for official documents such as a driver’s licence. She said that he made numerous false or misleading statements to immigration officials in an effort to remain in Australia, he breached visa conditions and he worked unlawfully. She stated that in light of the visa applicant’s consistent pattern of breaching immigration laws, there is a high likelihood that he would re-offend (ReBeale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714). She said that refusal of the application may deter others by preventing or discouraging similar conduct.
44. In respect of the exercise of the discretion concerning expectations of the Australian community, Ms Petre submitted that the Australian community expects non‑citizens to comply with Australian laws, and that the visa applicant’s past and general conduct would lead the community to expect that he not be given permission to enter Australia on a spouse visa. She said that other considerations referred to in paragraph 2.17 of Direction 21, such as family composition and marriage to an Australian permanent resident, do not outweigh the primary considerations.
45. In reaching its decision the Tribunal takes into account the documentary and oral evidence and the submissions made at the hearing.
46. There was no dispute that the visa applicant breached immigration laws by entering Australia on a false passport; obtaining a second false passport; providing false and misleading statements when making various applications; and by making false statements to immigration officials. The Tribunal accepts Mr Dinning’s submission that in 1996 the visa applicant was a naïve 17-year-old student who had no knowledge of Australia or the English language, and was told to travel to Australia and remain here against his will. However, the Tribunal accepts Ms Petre’s submission that, taken as a whole, the breaches of immigration laws represent a pattern of behaviour over seven years that cannot be attributed solely to his youth or inexperience.
47. The Tribunal takes into account that the visa applicant made a number of statements he knew to be false and signed documents without questioning the accuracy of the contents. Some of the offences occurred after his marriage in 2003 when he had responsibilities to the applicant as well as the benefit of her guidance and support, including her knowledge of English and of the importance of compliance with Australia immigration laws.
48. For these reasons, and by applying the principles set out in Goldie and Baker to the circumstances of this application, the Tribunal finds that the visa applicant does not pass the character test in s 501(6)(c)(ii) of the Act.
49. In considering whether to exercise its discretion under s 501(1) to grant the visa applicant’s application the Tribunal has had regard to Direction 21.
50. In respect of the first primary consideration concerning protection of the Australian community, the Tribunal finds that the visa applicant’s conduct in presenting false or forged documents and making false or misleading statements was very serious. In this regard the Tribunal notes that s 234(1) of the Act provides for heavy penalties by way of imprisonment or fines for offences of this nature. The Tribunal does not accept that the visa applicant should bear no responsibility for the false passports, and in any event, he knowingly made false statements on a number of occasions in connection with applications to remain in Australia and in interviews with immigration officials.
51. The visa applicant breached his visa conditions and remained an unlawful non‑citizen for about five years. In view of the consistent pattern of breaching immigration laws, in circumstances where he was aware that his actions were wrong, the Tribunal agrees with Ms Petre that the visa applicant may indulge in similar conduct again if he is permitted to become part of the Australian community. In these circumstances the Tribunal concludes that refusal of the visa application would act as a general deterrent and would protect the Australian community.
52. In respect of the second primary consideration concerning expectations of the Australian community, the Tribunal notes that the Australian community expects that non‑citizens will obey Australian laws while in Australia. The Tribunal gives considerable weight to the seriousness and frequency of the breaches of immigration laws as already described, and accepts the submission from Ms Petre that the Australian community would expect that a person who displayed such a level of past general conduct would not be given permission to enter Australia. The Tribunal agrees with the comments by Deputy President McMahon in Re Lachmaiya at 155‑156:
…The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
53. The third primary consideration, concerning the best interests of a child, is not relevant.
54. Having considered the primary considerations, the Tribunal is required to consider other relevant considerations listed in paragraph 2.17 of Direction 21. The Tribunal agrees with Ms Petre that refusal of the application would not disrupt the visa applicant’s family arrangements because his parents, sister and extended family live in China and he is living with the applicant in China. A brother resides in Australia. The Tribunal does not accept that refusal of the visa application would cause significant hardship to the applicant as an Australian permanent resident. She is living with her spouse, her family lives in the same city, she has full‑time employment, and although she told the Tribunal that she wishes to return to Australia, she lived in Australia for only four years, having arrived in Australia on a student visa on 6 October 1999.
55. The Tribunal takes into account that the application is for a temporary visa. The Tribunal notes that the applicant was aware of the visa applicant’s breaches of immigration laws before the marriage, and that she chose to return to China to be with him. The Tribunal accepts that the visa applicant is studying hospitality in Shanghai and that he has demonstrated business skills which he could utilise when seeking employment in China. There are no language barriers for him in China. Although the visa applicant and the applicant referred to pressures they face in living in China, the Tribunal is not persuaded that there are any compassionate or other circumstances that support the exercise of the discretion.
56. The Tribunal gives little weight to mitigating factors, such as the visa applicant’s lack of knowledge of Australian immigration processes and his youth. He committed a large number of breaches of immigration law over a lengthy period when he would, or should, have been aware of his legal obligations. The Tribunal does not view the alleged kidnapping as a mitigating factor, as there were numerous inconsistencies in his account of the incident, and the facts as claimed by him were uncorroborated by objective witnesses, there was no police investigation and, overall, the circumstances seem highly questionable. Similarly, the Tribunal gives little weight to the documents presented as character evidence (Exhibit A5) because the signatories did not appear at the hearing, and the context in which they gave their opinion was not explained. The writer of the letter of support (Exhibit A6) appears to base his comments on a period of three weeks when he provided accommodation to the visa applicant after his arrival in Melbourne.
57. In weighing up all the circumstances of the primary considerations and then the secondary considerations, the Tribunal concludes, for the reasons given, that it should exercise the discretion to refuse to grant the visa applicant a spouse visa on character grounds.
DECISION
58. The Tribunal affirms the decision under review.
I certify that the fifty‑eight [58] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 12 August 2005
Date of decision: 31 August 2005
Advocate for applicant: Mr P. Dinning
Solicitor for applicant: Baker and Armstrong
Advocate for respondent: Ms C. Petre
Solicitor for respondent: Clayton Utz Lawyers
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