Liang and Minister for Immigration and Multicultural and Indigeno Us Affairs

[2003] AATA 481

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 481

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/394

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GUO HUA LIANG

Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon RNJ Purvis, QC, Deputy President

Date28 May 2003

PlaceSydney

Decision The decision under review is set aside, and the application remitted to the Respondent with a direction that the application is not to be refused on the ground that the Applicant does not satisfy the Character Test.

………………………………

The Hon RNJ Purvis, QC                   Deputy President

CATCHWORDS

IMMIGRATION  - Skilled Independent Overseas Student class DD Subclass 880 visa – whether Applicant of “good character” – alteration by Applicant of International English Language Testing System (IELTS) test results – Applicant under considerable stress at time – mother of two year old son – son was ill – Applicant completing Masters degree – pressure from husband – Applicant afraid of being berated by husband – first blemish on character – alteration of grades in test not indicative of true character or enduring moral qualities – decision set aside.

Migration Act 1958 - s 501

Direction No.21 – Direction – Visa refusal and Cancellation under section 501

Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

REASONS FOR DECISION

May 2003 The Hon RNJ Purvis, QC, Deputy President     

the application

1. This is an application by Guo Hua Liang ("the Applicant") seeking review of a decision made by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") on 10 February 2003 refusing pursuant to section 501 of the Migration Act 1958 ("the Act") to grant to the Applicant a Skilled Independent Overseas Student class DD subclass 880 visa. The Applicant had also lodged an application for extension of her student visa which expired on 15 March 2003. As a consequence of the refusal of her application for the subclass 880 visa she was by reason of the operation of the Act deemed to be refused the application for extension of her student visa.

the hearing

2.      At the hearing of the application the Applicant was represented by Mr Radha Nair of Counsel, the Respondent by Ms Kiran Grewal, solicitor of Messrs Blake Dawson Waldron Lawyers.

3.      There was tendered in evidence the following written material which was marked accordingly:

Exhibit	Description	Date
A	Bundle of documents submitted by Ren Zhuo Lawyers to Administrative Appeals Tribunal	11 March 2003
B	Report from Dr Wilcox	17 April 2003
C	Reference from Jennifer Green	28 March 2003
D	Reference from Dr Hien Tran	26 March 2003
E	Reference from Yi Qian Guan	14 April 2003
F	Reference from Wei Lin Lu	14 April 2003
G	Reference from Shung Liu	13 March 2003
H	Letter from UTS Students Association	3 June 2002
J	Letter from Dr Peter Wong	18 March 2003
K	Letter from Dr W Brookes	15 April 2003

4.      The Applicant, Dr Rosalie Wilcox, Mr Wei Lin Lu and Ms Shung Liu gave oral evidence on which they were each cross-examined.

factual situation and findings of fact

5.      The Applicant was born in China on 25 May 1966. She is one of four children. Her father is a dentist by occupation and it was into that profession that the Applicant graduated in 1993. She began to practise her profession working with her father. In due course her two sisters and her brother also graduated as dentists.

6.      The Applicant married Mr Bin Kong in China on 2 June 1991. Mr Kong is a businessman, an importer and exporter, and in about 1993 he relocated to Indonesia.

7.      The Applicant worked in her father's practice for two years then joined her husband in Indonesia but found that she was unable to practise dentistry in that country with her Chinese dentistry degree. She became dissatisfied with the ease of life in Indonesia being married to a successful businessman.

8.      A year or so after joining her husband, the Applicant expressed an interest in furthering her education this time in Australia. She applied for and was granted a student visa to enter Australia which she did in 1996. The visa was valid up until 15 March 2003.

9.      The Applicant's husband remained in Indonesia visiting his wife in Australia from time to time. In early 1999 the Applicant became pregnant and was delivered in Sydney of a son on 7 November 1999. Other than for occasions when her husband has been in Australia, she has since the time of his birth had the sole care of the child.

10.     The Applicant commenced her studies in Australia by first undergoing an intensive six month English language course. She then underwent a further program "English for Academic Purposes" at Sydney University following which she pursued a Certificate III of Business Management at the Alpha Beta College of Business. On completing her Business Management Course she underwent a Graduate Diploma in Information Technology at the University of Technology Sydney and more recently is near to completing a Master of Science in Computing also at the University of Technology Sydney. She has two subjects in the latter mentioned Masters course yet to complete.

11.     On 17 October 2001 the Applicant applied for the subject subclass 880 visa. She wished to undertake a further postgraduate course and in order to do so it was necessary for her to be an Australian citizen or a permanent resident. On 10 March 2001 the Applicant had undergone an English language test, a test report issuing under date 16 March 2001. Such report showed test results as:

·     Listening Version 24 Band 5.5

·     Reading Version 15 Band 5

·     Writing Version 41 Band 5

·     Speaking Task 38 Band 5

·     Overall Band 5

12.     The Applicant says she was confident she should have obtained higher grades. At the time she says she had pressures on her by way of study, caring for her child and had not applied herself appropriately to the language test. When she received the report, she says she was "embarrassed by the results". Her husband arrived in Australia in early October 2001. He was critical of her spending lengthy periods of time at the University, he being then required to care for the son and arguments and disagreements arose between them. The Applicant says that she was fearful of her husband withdrawing his financial support for her academic study and was concerned that if her husband saw the English language test results that this would justify his requiring her to return to Indonesia. The Applicant says that she decided to alter the scores at a time when her husband was staying with her, she being concerned about his reaction and as already mentioned, worried that he might stop funding her studies. On about 14 October 2001 she changed the report to show results as:

·     Listening Version Band 7.5

·     Reading Version Band 8

·     Writing Version Band 7

·     Speaking Task Band 6

·     Overall Band 7

13.     As already indicated, the Applicant caused her visa application to be submitted on 17 October 2001. She says that at this time she was experiencing stress from her studies, her husband was requiring her to complete her studies, there was discord between them, and to compound this situation her son was not well, he had a virus. She says that she was under "considerable" pressure from her husband to obtain a visa that would give her permanent resident status and enable her to conclude her studies in Australia. She was also under pressure from other members of her family.

14.     Part of the documentation she thought was required in support of her visa application, was a report on her English language proficiency. As earlier indicated she had altered the test report. The documentation referable to the visa application was collated by her husband included amongst which was the falsified test report. The Applicant did not prevent her husband including the altered test results with other documents when he, on her behalf, presented her application for the subclass 880 visa to the Respondent. When she discovered the inclusion she says she was afraid and worried in that if her husband became aware of the falsity it would adversely affect her academic pursuits as well as the personal relationship.

15.     On or about 16 January 2002 the Respondent asked the Applicant to provide the original Test Report Form. She replied on 17 January stating that this was not possible contending that her young son had taken it from her desk and it was now lost or destroyed. She did not then admit to having altered the report. In her evidence before the Tribunal the Applicant said that she was "scared at the time to tell that she had done the wrong thing”.

16.     Under date 10 May 2002 the Respondent wrote to the Applicant inter alia stating:

" You have provided an IELTS test dated 10/3/01.The IELTS test that you provided has Test Results including Listening (7,5), Reading (8,0) Writing (7) and Speaking (6) with an overall band score of 7.0. On the 9/1/02 I requested that you send the Original copy of this IELTS test. On 17/1/02 you replied in writing that you do not have original copy of this IELTS test as your son had destroyed it. We have confirmed that the correct results for this IELTS test is Listening (5.5), Reading (5.0), Writing (5) and Speaking (5) with an overall band score of 5. It is clear to this department that you have altered your test results."

17.     The Applicant replied on 30 May 2002 admitting that she had "made the stupid mistake" and in providing an explanation stated:

"I am currently studying a Master of Science in Computing and my goal is to study a Master of Internetworking, especially the 4 Subjects of CISCO CCNP at UTS, and obtain a qualification in CISCO CCNP. However, at that time, this course was only available for local students or those with permanent residency, as it was only offered on part-time Mode. If I got the permanent resident visa, I would be able to switch my course from Master of Science in Computing to Master of Internetworking. Because my course is Master of Science in Computing, I only can enrol in some of subjects from internetworking department, when that subject has some space available, as we have to get the permission from the Head of the Internetworking department. Sometimes we have to wait after the beginning of each semester for two or three weeks, when some students have dropped that subject, then we are able to enrol. So far, I have studied the following subjects under Master of Internetworking Course in my first two semester of Master Degree's study:

·     32516       Internet Programming or Programming on the Internet

·     32524       LANs and Routing

·     32521       WANs and VLANs or Internetworking

·     32520       UNIX Systems Administration

·     32549       Advanced Internet Programming

·     32931       Information Technology Research Methods "

18.     The Applicant now says that in changing the results she did not realised the seriousness of her action and had no idea "it would be considered in such a serious light".

19.     During the year 2002 the Applicant continued with her studies and at the time of the expiry of her student visa in April 2003 she had the above mentioned two subjects to complete in order to obtain her Masters Degree.

20.     Following the refusal to grant her the subclass 880 visa and on the expiry of her student visa, the Applicant and her son were taken into detention where they now remain.

likelihood of engaging in similar conduct

21.     The Applicant was on her legal adviser’s request seen by Dr Rosalie Wilcox, a General and Forensic Psychiatrist. She was interviewed at Villawood detention centre. In her report of 9 April 2003 Dr Wilcox stated as her opinion:

"She was under considerable stress around the time she submitted the application for permanent residency. She had only one month left to study for her exams and was aware that her family had expectations of her. Her son had poor health and her husband was involved in his care. She became concerned that he might stop paying for her to continue with her studies.

During this time she reported symptoms of increased stress with sleep disturbance, impaired concentration and weight gain. It is conceivable that as a result of this stress her judgement was impaired. Although she was aware that it was wrong to submit an altered form she did not fully comprehend the seriousness of her actions. She was more concerned about pleasing her husband and her family.

She is now very remorseful for her deceit. There is no indication that she has any disturbance in her personality in particular there are no anti-social traits and there is no past history of relevance. I believe that her behaviour was out of character and reflected her difficulty coping with a number of stressors." (Exhibit B)

22.     In her evidence before the Tribunal, Dr Wilcox stated that the Applicant in her opinion, felt genuinely distressed and at that time whilst knowing that what she did was wrong did not realise how serious it could be. She does however accept responsibility for her actions. Dr Wilcox is of the opinion that the Applicant does not present as a person who would repeat such conduct and she would be surprised if the Applicant "ever did a similar thing again". She has, according to Dr Wilcox "learnt a big lesson to be honest and seek out assistance".

23.     Ms Jennifer Green, Director of the UTS Child Care Centre referred in her report to the placing by the Applicant of her son from the age of nine months in Child Care at the University, of the long hours day and night he was in care, whilst the Applicant attended lectures or studied and the frequent adverse state of his health.

24.     Dr Hien Tran had the Applicant and her son as his patients. According to Dr Tran the Applicant often presented at his surgery in much distress because she was trying to cope with her studies and look after a sick baby. In other reference material tendered in evidence before the Tribunal the Applicant is described as having:

"demonstrated strong desire to achieve the outstanding performance in the subject she was doing; she was a key member of the group; she was always very happy to help others"  (Exhibit E)

Working until 10pm at the university library with her son sleeping near by, one of the hardest students in the school."(Exhibit F)

"Very hard working" and "very remorseful these days" (Exhibit G)

25.     A Moo Baulch writing on behalf of the UTS Students' Association speaks of the Applicant showing  "herself to be a trustworthy and hardworking person who is studying under difficult circumstances and often-intense pressure." The representative states and believes that her actions in relation to the matter should be considered a mistake rather than a serious attempt to deceive. "She is of good character and a honourable person who may have acted foolishly under pressure."

26.     On the basis of the evidence before it the Tribunal is satisfied that the unacceptable conduct of the Applicant was an isolated incident that occurred at a time when she was experiencing extreme academic and marital pressure compounded by the ill health of her son. The results were altered for the benefit of their being shown to her husband and to hide her embarrassment. Her fault was in allowing them to go forward to the Respondent. Howeve, she may well have felt that she was in a difficult situation for if she notified the Respondent her husband would then know of her correct results and might have caused a termination of her studies. She said that she believed that if she was required so to do she would again sit the exams and obtain results consistent with the grades so altered. There was also evidence before the Tribunal to the effect that having already completed two years of University study she was not in fact required to submit an English Language Report.

27.     It is the finding of the Tribunal that there is not a likelihood of the Applicant engaging again in like conduct or conduct of a similar nature.

the position taken by the respondent

28. The Respondent maintains that by reason of the conduct of the Applicant in altering the language test results and not subsequently when a query was first raised admitting to such conduct that she is a person not of good character within the meaning of section 501 of the Act. It is said that by providing the false statement of results the Applicant's conduct falls within paragraph 1.9 of Direction No. 21 of the Minister. It is said that her conduct in this regard is serious and reflects adversely upon her character. It is said that her conduct was adverse in that she not only altered the document but allowed it to be submitted with her application and later when given an opportunity to do so did not admit to the document being incorrect.

29.     Accordingly it is maintained that the Applicant does not satisfy the character test. The Tribunal is to then direct its attention to factors to be considered in the exercise of its discretion.

30. When looking at the discretionary factors the Respondent maintains that the nature of the conduct is illustrative of a breach of section 234 of the Act carrying as it does a possible penalty of ten years imprisonment. It is true, as submitted on behalf of the Respondent that the Australian community expects persons seeking to enter into Australia to tell the truth. It is also true to say that there is an obligation to be honest with officers of the Respondent. The Tribunal does not seek in these reasons to do other than agree with the submissions so made. However, it does consider and so finds that the conduct of the Applicant in altering the test results was initially for the purpose of her presenting a favourable image to her husband and that thereafter circumstances were such as to in her mind preclude her from at first admitting to the reality of the situation. She was undoubtedly placed in a quandary. The alteration was not made in aid of advancing her visa application. It was her error in allowing the document to go forward and not admitting to her husband that it was incorrect. Her mistake was in not rectifying the falsity when given the opportunity so to do. Again circumstances as earlier indicated in these reasons dictated the conduct that has become the subject of criticism.

31.     The Respondent also submits that the Applicant may indulge in similar "fraudulent behaviour in the future to obtain a migration outcome or other form of government benefit to which she is not entitled". The Tribunal accepts the evidence of Dr Wilcox and is minded of the assessments made by other witnesses as to the character of the Applicant. The Tribunal is satisfied that the chance of recidivism is minimal. It is further said that refusal to grant a visa to the Applicant would serve as a deterrence factor against others committing similar offences. It is the view of the Tribunal that the "offence" was of a singular nature and is peculiar to its own circumstances. It does not consider that refusal to grant a visa would have a deterrent effect on prospective visa applicants. The Tribunal does not see the Applicant's conduct in this matter as seeking to mislead the Respondent. She was caught up in a sequence of events from which she found it difficult to extricate herself. 

32.     It is true that the provision of false information to the Respondent is considered by the Government to be very serious. It is true that the Australian community expects non-citizens to obey Australian laws while in Australia and that "character concerns or offences" are such that the Australian community may expect a visa application to be refused. Again however the circumstances of the subject conduct do not fall within this consideration.

33.     One of the primary considerations that the Tribunal needs to consider is the best interests of the Applicant's son. He is a temporary resident although born in Australia. He is three and a half years old, his father living in Indonesia, his extended family in China. There was little evidence before the Tribunal to the effect that his welfare would be the better served if he remains in Australia in contradistinction to the family reuniting in Indonesia or in China.

34.     Other considerations include the hardship that would be experienced by the Applicant in the event of the decision under review being affirmed. Such a decision would entail her leaving Australia and not been able to complete her Masters degree course. It was said on behalf of the Respondent that there was not any evidence to show that she could not complete her degree in Indonesia or in some other country. The Tribunal does not see the situation as being so simple. The Applicant has applied herself with great intensity to not only becoming fluent in the English language in a relatively short period of time but completing a Graduate Diploma Course in a discipline other than her primary degree in Dentistry and also nearing completion in a Masters degree. She has sacrificed much in pursuit of her academic ambition. She has cared for her son and seeks to complete her studies in aid of providing greater support for her family unit.

35.     The Tribunal is minded of the fact that the subject application is in effect for a permanent visa.

submissions made on behalf of the applicant

36.     The Applicant is 36 years of age and but for the falsification of the results, the presentation of them to the Respondent and her not admitting the falsity at the first opportunity she does not have any conduct adverse to her good character. It is to the "enduring moral qualities of a person" (see Irving v MILGEA (1996) 68 FCR 422 at 431) that the Tribunal is required to pay heed. The conduct of the Applicant took place in the circumstances earlier indicated of significant stress. As submitted on behalf of the Applicant and accepted by the Tribunal the conduct was out of character. It does not reflect adversely on her enduring moral qualities and in view of her past and present general conduct including the circumstances of the occurrence of the conduct that is in question, the Tribunal should not be satisfied that the Applicant is not of good character.

decision

37.     The Tribunal is satisfied that the single act of the Applicant in altering the four grades on the report is not indicative of her true character or her enduring moral qualities. Nor is her reticence at informing the Respondent of the true nature of the report so indicative. As Dr Wilcox stated "all her actions were connected to the one incident".

38.     The Applicant has no other blemish upon her standing or reputation. She acted unwisely but in circumstances that provide a reasonable explanation if not excuse for her conduct.

39.     The Tribunal does not accept that the character of the Applicant can be said to be not good by reason of this lapse of judgement.

40. Accordingly, the decision under review is to be set aside with a finding that the Applicant satisfies the Character Test under section 501 of the Act.

41.     Having received submissions on behalf of the Applicant and the Respondent as to the exercise of the discretionary power, it is appropriate for the Tribunal to indicate the attitude that it would have adopted in the event of a finding adverse to the Applicant having been made with reference to character. Whilst being mindful of the nature of the Applicant's adverse conduct, the Tribunal does not consider it to have been of such a nature as to fall within the category of conduct itemised in Direction 21. It was indeed serious but in the context of the circumstances then existing not so serious as to attract the attention of the provisions of the Direction. This does not mean that applicants are not required to be truthful more to the contrary. The original intent of the Applicant was not to deceive the Respondent but to place herself in a more favourable light in the eyes of her husband. As to recidivism, the conduct of the Applicant was such as is not likely to be repeated. The Tribunal had before it persuasive evidence to this effect. The deterrence aspect has already been considered and discussed and is of little weight. Likewise the expectation of the Australian community when all of the factors are known would not be such as to weigh heavily in considering whether the Applicant should be precluded from being granted a visa.

42.     The best interests of the child can not be said to be adversely affected if he was required to live in Indonesia or China. Be it not a primary consideration the hardship that the Applicant would experience in the event of a visa not being granted to her and she not being able to complete her university study is significant.

43.     If the Tribunal had been required to consider the discretionary considerations it would for the reasons herein before set forth have exercised its discretion in a favour of the Applicant.

44. As already indicated the Tribunal is satisfied that the Applicant is not disqualified by reason of the provisions of section 501 of the Act. Accordingly the decision under review is set aside with a finding that the Applicant satisfies the Character Test under section 501 of the Act. The application is referred back to the Respondent for further consideration with a direction that the application is not to be refused on the ground that the Applicant does not satisfy the Character Test.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon RNJ Purvis, QC, Deputy President

Signed:         .......................................................................................
  Associate

Dates of Hearing  6 May 2003, 13 May 2003
Date of Decision  28 May 2003
Counsel for the Applicant         Mr R Nair
Solicitor for the Respondent     Ms K Grewal, Blake Dawson and Waldron Solicitors