Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1887
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/1693
GENERAL ADMINISTRATIVE DIVISION )
Re Hui LIU
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date25 October 2007
PlaceSydney
DecisionThe decision under review is affirmed.
..................[sgd]............................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa denied – character grounds – visa applicant committed multiple breaches of Australian migration laws – visa applicant gave materially false evidence at the hearing before the tribunal – community expectations weigh against the grant of a visa in this case – best interests of the child considered – expert evidence – there must be a proper foundation for the facts upon which an expert opinion is based and the opinion must be wholly or substantially based on the witness’s expert knowledge – community protection and expectations outweighed the best interests of the child and other considerations in this case – decision under review affirmed.
…
RELEVANT ACT/S:
Migration Act 1958 ss 499(1), 499(2), 499(2A), 501(1), 501(6), 501(6)(c)(ii)
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065
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, 781
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, 353-54
Re Beale and Minister for immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617
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 Barattini and Minister for Immigration and Multicultural and Indigenous Affairs {2005] AATA 157
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42
Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443
Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1308
Re Chor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766
Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240
Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65
…
OTHER REFERENCES
I.A. Shearer, Starke’s International Law, 11th edn. Sydney 1994, 314-315;
I Brownlie, Principles of International Law, 5th edn. Oxford 1998, 552
International Covenant on Civil and Political Rights
Johan Norberg, In defence of global liberalism, Policy, winter 2006, 43, 47
…
REASONS FOR DECISION
25 October 2007
Professor GD Walker, Deputy President
Summary
1. The visa applicant Ms Yue Qin Xu arrived in Australia on a false passport in 1997. She made a false protection visa application and committed a number of other breaches of migration law during an unlawful stay of over five years. She entered into a de facto relationship with the applicant and a child was born to them in 2003. The respondent refused a partner visa to Ms Xu on 19 October 2006 and the applicant Mr Hui Liu applied to this tribunal for review of that decision.
2. At the hearing, the applicant was represented by Mr Ivan Rados, solicitor of Chancellor & Rados, and the respondent by Mr Tigiilagi Eteuati, solicitor of Clayton Utz. 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. The applicant gave oral evidence in person while the visa applicant gave evidence by telephone from China. A Mandarin interpreter translated throughout the hearing for Mr Liu and Ms Xu. On 28 August 2007, Dr Leonard Lee and Mr Wilson Wong both gave evidence for the applicant by telephone.
Issues
3. The issues in this case are:
(i)Whether the visa applicant passes the character test as stated in s 501(6)(c)(ii) of the Migration Act 1958 (Cth) (the Act); and if not,
(ii)Whether the tribunal should exercise its discretion under s 501(1) so as to set aside or affirm the decision under review.
Relevant Law and Policy
4. Under s 501(1) of the Act, the minister may refuse a visa if the applicant 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), as follows:
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(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. That includes this 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.
6. 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
7. The visa applicant Yue Qin Xu was born in Fujian province, People’s Republic of China (PRC) on 2 July 1963 and is a citizen of that country. She lived in Fujian until her departure for Hong Kong, and ultimately Australia, on 20 September 1997. She has three sisters and a brother, all of whom live in China.
8. In March 1986 by the decision of her parents and through the intermediation of a local matchmaker, she became engaged to Yon Le Liu. They were married in 1987 according to custom and formally registered the marriage on 12 September 1989. A son was born to them on 17 August 1988.
9. The marriage was unhappy and ended by separation in September 1997 when the visa applicant travelled to Hong Kong to stay with her sister Yue Hua Xu. Her divorce was not finalised until 3 September 2004.
10. Ms Xu first arrived in Australia on 16 October 1997 as a member of a tour group on a fraudulently obtained British National (Overseas) passport in the false name of Pui Ying Chan and a false date of birth of 14 October 1951.
11. Some three weeks after her arrival, on 5 November 1997, the visa applicant applied for a protection visa, which was refused by the department on 29 January 1998. In the meantime, she had met the applicant Hui Liu at the acupuncture clinic of Mr Jian Hua Zheng and they gradually developed a close relationship.
12. On 20 February 1998, the visa applicant applied to the Refugee Review Tribunal (RRT) for review of the decision to refuse her protection visa application. The RRT affirmed the decision to refuse the visa on 15 October 1998.
13. Ms Xu wrote to the then Minister for Immigration and Multicultural Affairs on 2 November 1998, requesting that he exercise his power under s 417 of the Act to substitute a more favourable decision in place of that of the RRT. The minister declined to exercise that power and the visa applicant was so informed on 2 June 1999.
14. The respondent contends that the visa applicant remained unlawfully in Australia from 16 January 1998 to 27 January 1998 and from 19 November 1998 to 24 February 2004, but the duration of her unlawful stay is disputed by the applicant. It is not denied, however, that Ms Xu worked in Australia without permission for most of the time from her arrival until her departure on 21 March 2004.
15. In late 2001, Mr Liu purchased a house and in January 2002 he and Ms Xu began to live together. Late that year, Ms Xu discovered that she was pregnant and on 13 September 2003 gave birth to Anita Liu at Campbelltown Hospital.
16. On 16 June 2004, Ms Xu applied for a partner (subclass 309) visa which was refused by the respondent on 1 September 2004 on the ground that the delegate was not satisfied that the relationship was a genuine one. Mr Liu applied to the Migration Review Tribunal (MRT) for review of that decision, and on 6 July 2005 the MRT remitted the application to the respondent with the direction that the visa applicant and the applicant satisfied the genuine relationship requirement.
17. The respondent refused the visa applicant a partner visa on 19 October 2006. Ms Xu and Mr Liu were informed of the decision on 10 November 2006 and on 5 December 2006 Mr Liu applied to this tribunal for review of the decision to refuse the partner visa on the basis of s 501(6) of the Act.
The applicant’s evidence
18. The applicant was directed to file and serve witness statements on or before 18 May 2007. He was subsequently granted an extension which allowed until 13 July 2007 and a further extension to 31 July 2007.
19. None of those directions was complied with and when the hearing began the applicant had still not supplied a witness statement. Instead, he read from a hand-written statement.
20. Mr Liu described how he met the visa applicant at the acupuncture clinic, saying it was “love at first sight”. After he bought a house in late 2001, they moved in together in January 2002 and the visa applicant stopped work for a time and kept house, discovering at the end of 2002 that she was pregnant.
21. After his grandmother died in February 2004, she decided to return to work to help raise the fare to enable Mr Liu to attend the funeral.
22. She began work at the same factory where he was employed on 17 February 2004 but was detained three days later by compliance officers. She honestly told them about her record, including the false passport, her overstay and illegal work. She offered to leave voluntarily and applied for a bridging visa on 24 February 2004. He purchased a ticket for her on 21 March 2004.
23. Both parents and the baby returned to China at that time to enable the visa applicant to apply for a divorce. They asked her sister in Hong Kong to take care of the baby for three months.
24. He returned to Australia in April 2004, sending $2,500 to China to meet her expenses in May. On 13 June he returned to China and they lodged the partner visa application at the Guangzhou consulate on 16 June 2004. At that time a consular officer reminded them that she needed to pay $1,000 in connection with the RRT appeal. They duly paid it.
25. On 12 September 2004, he returned to Australia with the baby and lodged an appeal in the MRT against the respondent’s refusal of the spouse visa on the ground that the relationship was not genuine and continuing. The appeal was successful.
26. He again returned to China in September 2006 with the baby, who is now aged three years and 11 months. She misses her mother and they are able to maintain contact through letters and daily telephone calls. He says it is hard for a man to bring up a little girl.
27. Ms Xu had overstayed her visa, worked without permission and used a wrong passport, but when she realised that she had done wrong she tried to correct her errors. He disputed that she arrived on a false passport with a false visa, saying that it had simply been issued to another. The protection visa claims, however, were mainly false.
28. He did not think he would be able to live in China today, having left 18 years ago when it was not developed. Today even new graduates cannot find employment, and as he is middle-aged, “How could I get a job?”. It would be impossible to obtain work similar to that which he is doing now because he is used to Australia.
29. He did not think the child could adapt to life in China because she was born in Australia and grew up here. She has “fixed friends” and enjoys Australian children’s programs on television. She is able to speak both English and Chinese and can choose between them. At home, she speaks Chinese and some English, and with her friends at school speaks English. She speaks Chinese, however, when meeting the children of friends. At school she learns drawing and handicrafts and enjoys playing with her favourite toys. It would be “disastrous” for her to grow up separated from her mother, and if she were to relocate to China, she would lose her English ability, and being an Australian citizen she would be treated as a foreigner. She would have to pay more than Chinese children to attend school.
30. When they met in 1997, the visa applicant was using the name Siao Chen and introduced herself to him as such. He did not find out about her real name until one or two years later. She had told him about the passport from the start, but when she came to know him better told him more. He was not shocked because he knew she had been the victim of domestic violence.
31. She had continued to use the false name at work as her passport and identification were in the name Siao Chen. She was afraid to disclose her real name. She could not have told him her real name at the outset as they were not at that stage close friends.
32. He had also known at an early stage that she had applied for a protection visa and had surrendered her passport. He did not initially know that the passport had been bogus and did not ask her about it, but he knew that those who had come to Australia with her had used false passports. He had become aware of the passport situation when he met her friends. A little later he said he did not learn about the passports from her friends but from articles in the paper. He had simply guessed that her friends had come on false passports.
33. It was not until after 1999 that he had found out about the false protection visa claims and the appeal to the RRT. While the process was on foot she had not told him anything about it, but he believed in personal privacy. By 2002, he knew about all her migration violations, but had not been concerned that she might not be able to obtain permission to live in Australia. His plan was to marry her and sponsor her for a spouse visa, but at that stage she had not been able to obtain a divorce.
34. They had left Anita in the care of her sister in Hong Kong for three months when she was six months old, because Ms Xu at that stage did not have a divorce and would be killed if her husband found out her situation if she visited her home town.
35. While they were in China on that occasion, they stayed with his adoptive parents at their home in Shenzen City, Guandong province. The visa applicant has looked after Anita only for the first six months of her life and also for three months when she returned to China in June 2004.
36. Asked what he meant by saying that she had tried to correct her errors when she realised she had done wrong, he said that she realised her mistake but had not previously known that she had breached the regulations. She thought she could remain legally in Australia if she married and had a child.
37. It was not until he had known her a few years that he learned that her protection visa claims were false. When she showed him the documents, he had said she was bound to fail because the content was exaggerated. Although she was a religious believer, she was not an organiser and had not been persecuted. She and the agent together had exaggerated. She had told him she had relied on an agent who could do something for her, but she had exaggerated as well.
38. Anita is currently attending two schools, Angels’ Gardens Children’s Services (Angels’ Gardens) and Kabbarli Early Learning Centre (Kabbarli) at Minto. That was because Kabbarli only had vacancies on Mondays and Fridays originally, but now she has become accustomed to attending two schools.
39. If he and Anita were to return to live in China, she would lose her ability in English, which is her mother language. She would have to pay school fees and would not be able to obtain Chinese citizenship. He would find it difficult to obtain work at his age, but admitted he had not tried to do so. But he had never thought about returning to China because he did not think it would happen. If a visa were refused, he would work in Australia but take Anita to visit her mother at holidays.
40. Even if he could obtain work in China, he was accustomed to Australian life and to conditions here. Asked if he meant that he would remain in Australia with the child because of the lifestyle, he replied that he did not see how that related to the fact that he and his daughter have accepted the Australian lifestyle. When again asked what he would do if Ms Xu was not granted a visa, he repeated that Anita would remain here where he has his house and friends, and they would return to China to visit. He would reapply for a partner visa, and when Anita is 18 she could make her own decisions.
The visa applicant’s evidence
41. As was the case with the review applicant, there was no witness statement filed in respect of the visa applicant. She delivered an oral opening statement, essentially an hour-long monologue through the interpreter outlining her upbringing and her unhappy marriage to a violent husband. She said she had attempted suicide once and had been rescued by her relatives, who obtained for her a visitor visa to Hong Kong, where she stayed with her sister and brother-in-law in 1997.
42. Her sister had helped her to buy a Hong Kong passport and a valid Australian visa (transcript (ts) p39). She came to Australia with a tour group on 16 October 1997 to escape her husband. A friend told her that she could remain in Australia if she applied for a protection visa, and she accordingly went to a migration agency, the Orient Immigration Centre in Chinatown. They asked about her religious affiliations, and she told them she was a follower of the Tien Tao, whereupon the agent said he could help. She gave the agent her true identity from her Chinese identification card and handed over the bogus passport, which was delivered to the department.
43. While she was awaiting the result of the application, she worked to support herself. She knew that by doing so she breached the visa regulations and that she was doing wrong.
44. She met Mr Liu in December 1997. They became close and he did what he could to help her. The protection visa was refused in January 1998 and the application to the RRT also failed. On 2 June 1999, the s 417 application also failed, but she feared losing Mr Liu’s love if she left Australia and did not wish to return to her marriage. She therefore overstayed her visa. Mr Liu bought a house in 2001 and they moved in together in February 2002. She became a housewife, stopped work and prepared to have a child (ts p40). In December 2002 she discovered she was pregnant. She had to pay the hospital charges for the birth, as she did not have permanent residency.
45. She had returned to work in February 2004 to help pay for her husband’s fare to return to China for his grandmother’s funeral. Detained at work a few days later, she told the department the whole story and offered to pay her fare to return to China.
46. Tickets were purchased and the three travelled to China together. She stayed in her home town to deal with the divorce, but as it was inconvenient to take Anita there, she left her with her sister in Hong Kong.
47. To make Mr Liu sell his house and leave his job, and for the child to leave her school, was not realistic, she said. She wanted the family to be reunited in Australia. She had made a serious mistake but had been in a hurry to leave a violent husband, to avoid being beaten to death or driven to suicide. She did not want her child to live without her mother.
48. She had lived with her first husband for 10 years, but for all but the first two of those he had been violent. They lived in a small town where there were no women’s shelters and the nearest capital city, Fuzhou, was 60 or 70 kilometres away, an hour’s drive. She had worked during her marriage and had been financially independent (ts p44).
49. Asked by Mr Rados whether she had known her protection visa claims were false, she replied that she had been told she could remain in Australia if she claimed to be a refugee. Asked if she had known about the claim that she had been an activist and an organiser, she answered that the agent had prepared the application and she had not seen it, but she now accepted that it had been false and accepted responsibility for it.
50. She said she did not know what claims had been made before the RRT (ts p47), although she admitted that she had appeared at the hearing and then conceded that she had continued to make the false claims (ts p48).
51. Asked about the claims in the s 417 letter to the minister, she said she was not sure what they were, as the agent had written the letter (ts p48).
52. She said she had not used the false identity to obtain any other documents, including a driver’s license, or for the purpose of a bank account. She had not obtained a tax file number in a false name either (ts p49).
53. She had worked purely in order to survive. She could not return to China because she would have to return to her husband.
54. In relation to the incorrect answers in the partner visa application, she denied that she had left Australia to avoid removal because she had said she would leave voluntarily and the applicant had purchased a ticket for her. She had paid the debt of $1,000 at Guangzhou. It was the agent who had ticked the “No” box in relation to the question of debts to the Commonwealth.
55. She was not currently working but had obtained a position at the local supermarket in January 2002, earning something over 700 RMB per month, which was about enough to live on. She is living in a five-storey, eight-bedroom building owned by her brother where she shares a room with her mother. If she had to pay rent, her wages would have been barely enough to cover her expenses. It had taken her almost three years to obtain that position, but she had been retrenched as the business was not doing very well (ts p54). At the moment finding employment was difficult because it was not the peak season. Mr Liu had sent her $2,500 in 2004 and brought additional money for living expenses each time he came to China.
56. She said it would not be possible for her daughter to obtain Chinese citizenship, because she already has a child, and the child from the second marriage could not become a citizen. Being a registered citizen has benefits, because it is possible to purchase medical insurance, otherwise medical fees have to be paid. Her child could not attend school in China and there are no schools for foreign children, she said, although she admitted that she had not made any enquiries on that subject (ts pp55-57). There is a local clinic with two general practitioners, but conditions are poor and to obtain better facilities she would have to travel to Fuzhou, about an hour away by bus or taxi.
57. The visa applicant said she talks to Anita on the telephone every day. The child speaks to her in Chinese, sometimes in English, but as she does not understand English, it is usually Chinese. There would be no English language teaching at the village school. Her daughter tells her that she has a great deal of fun at school, where she has toys and games and plays in the sand.
58. Asked by Mr Rados if she was developing an Australian character or a Chinese character, Ms Xu replied that she is “more adaptable to this environment” (the Chinese environment, it would appear), but not to this village (ts p61). The last time she came, she was bitten by mosquitoes and could not understand the local dialect (ts p62).
59. Although she had said the child would be “more adaptable” to the Chinese environment, the visa applicant when led then said she would be more adaptable to Australia because she grew up here and does not want to return to the village because she had been bitten by insects.
60. In cross-examination she denied that she had asked her sister to obtain the false passport for her, saying her sister had obtained it because she was sympathetic to her predicament (ts pp66-67). Ms Xu had noticed that the name and date of birth were false and knew that she was not entitled to a Hong Kong passport. She did not know if her sister had paid for the passport, as she would not say, even when Ms Xu later asked her how much it had cost (ts p80).
61. She claimed not to know the names of any members of the tour group with which she came to Australia, and said she did not know any of her co-applicants before the RRT (T p93), including Hua Hui Chen. The indication to the contrary in the RRT records (T p93) was incorrect and had been prepared by her agent. She said that none of the other members of her tour group were carrying false passports and when Mr Liu’s statement to the contrary was put to her, she replied that she did not know.
62. Her claims before the RRT were false and had been made up by the agent. She said she had never personally advanced those claims. Reminded that she had given oral evidence before the RRT (T pp95-96), she replied that she could not recall exactly what she had said before the RRT, it was a long time ago, she could not confirm or deny anything and did not recall whether or not she had said anything (ts pp70-71). The agent had prepared the documents and she acknowledged that she was at fault by not paying attention to them. She knew nothing of the documents’ contents and the agent had made up her story, and she was unthinking.
63. When it was pointed out to her that she herself had given false evidence before the RRT, she replied that she did not know what to do and did not know the result of the application (ts pp72-73).
64. She had not been told that the application to the RRT had failed and said that her s 417 letter to the minister (T pp104-106), which acknowledges the contrary, had been prepared by the agent. She had not read it.
65. She had not completed, or even seen, the partner visa application and did not know its contents. Her husband had brought the forms to her, but they were in English, which she cannot read, and is unaware of what is in them (ts pp73-74).
66. When she left China, her son, then aged nine, had remained with her ex-husband. Asked if she had been concerned about that, she replied that she could not guarantee her own safety and there was nothing else she could do. She could not take her son to Hong Kong because her sister had obtained an entry document only for her. She could not have taken him somewhere else within China, because at that time she wanted to take her own life but did not want to kill her son. She had been suicidal even in Hong Kong. It would not have been possible for her to live with her sister in her small Hong Kong apartment, and she had reasoned that her husband would be unlikely to kill his own son (ts p75).
67. She acknowledged that although she had claimed her husband would kill her if she returned to China, that did not happen in 2004 when she went back to the town where he lived. When she raised the question of divorce, he had come into her room but her brother had threatened to report him to the police if he kept beating her, and he desisted (ts pp75-76).
68. Although she had admitted her migration contraventions while in detention, she had not previously approached the department to regularise her situation because she was in a relationship which she did not want to leave, or to return to her marriage. Asked if she would have remained in Australia and continued to work if she had not been apprehended, she replied that she had stopped working after the child was born and had no intention of resuming. She then admitted that she had resumed work, but said it was only for the purpose of raising funds to enable Mr Liu to return to China for his grandmother’s funeral.
69. Ms Xu said her pregnancy in 2002 had been unplanned but they had decided to allow it to go to term. Asked if she had been concerned that she might not be able to remain in Australia, she replied that she had only been thinking about the birth, because Mr Liu was old. She had thought that because she was in a relationship and had a child, she would be permitted to remain in Australia (ts pp77-78). She did not want her daughter to grow up without her mother and she wanted to be with Mr Liu.
70. Asked if the family could live together in China, she replied that they had no house there, nothing, and asked rhetorically how it would be possible. Mr Liu would not be able to obtain employment, as it had taken her three years to find a job, which stopped because she was herself getting old. She had not considered seeking employment in her husband’s area, Shenzhen, as it is far away from her village. She had made no inquiries about her daughter’s possible status in China, nor had she asked Mr Liu about it, because she did not want Anita to return to China.
71. In 1997 she had not considered moving to some other part of China rather than coming to Australia, because she did not know where else to go (ts p80).
72. She said she could not recall how long she had worked in Australia. In 1997 she initially had some casual work, then continued to work until 2002 (there appears to be an error in the transcript (p80) on this point). During that time she said she had paid income tax, but had no records to show it because her employer had deducted tax from her wages.
73. At the end of her re-examination she was asked if she had applied for a protection visa. She said she did not know what a protection visa was, but when it was explained that it was a refugee application, she acknowledged that she had. Asked if she had read the form, she replied that she did not know what form was being referred to. She had not been told when the application was lodged and had never seen it; how, she asked, could she acknowledge it?
Observations on the visa applicant’s evidence
74. The visa applicant’s evidence presents a number of difficulties. Here are some of them:
(a)When asked why, in 1997, she could not have left her husband by moving to another part of China, she said at first that it was because she was suicidal. Assuming that she was in fact suicidal, it is hard to see why that would have prevented her from relocating to somewhere else in China when it did not prevent her from the much more radical step of moving to Australia.
(b)At a later point in her evidence she said that she did not move to somewhere else in China because she did not know where to go. But at that time she was a woman aged 34, who had worked throughout her marriage and was financially independent (ts pp44, 80). She undoubtedly knew more about places to move to in China than she did about Australia.
(c)She said repeatedly that she feared that her husband would kill her if she remained in her home town or returned there (when in fact in 2004 she did go back to the town for the purpose of arranging the divorce). And yet she claims she did not fear for the safety of her nine year-old son whom she was leaving with a putatively homicidal man. Her explanation that she did not think her husband would kill his own son is a calculation that a mother is unlikely to make about the life of her only child.
(d)It was impossible for her to remain with her sister in Hong Kong, she said, because her permit gave her the right to remain for only a month. Yet she acknowledged that her visitor’s visa for Australia (even if valid) would have entitled her to remain here for only three months. While her explanation may in fact be subjectively truthful, it suggests a particular contempt for the laws of Australia.
(e)When interviewed after being detained by compliance officers at her place of work, she said that a friend had arranged the false passport for her (T p116). In her evidence in chief at the hearing, however, she said her sister in Hong Kong had helped her to buy the Hong Kong passport containing a valid Australian visa. She had said “I bought a passport with her [the sister’s] help” in her letter of 2 April 2006 to the respondent (T p337). In cross-examination, however, she denied that she had asked her sister to obtain the passport, saying that her sister had sympathised with her and had obtained the passport herself. The visa applicant said she was not sure whether her sister had paid for the passport as she would not say when she asked her afterwards how much it had cost. But false passports are expensive, and a British national overseas passport is unlikely to be at the lower end of the price range. That her sister, however sympathetic she might have been, would simply have incurred that expense of her own motion and without consultation (and presumably obtaining a passport photograph by some means) is not plausible. Further, the visa applicant was born and lived all her life in Fujian province, a notorious marketplace for bogus passports and other travel documents (Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065 at [112]).
(f)At the hearing before the MRT in 2005, the visa applicant was emphatic that she did not know the passport on which she came to Australia was false until some time later (T p277). At the hearing before this tribunal, she initially said she did not notice that the passport was in a false name, but shortly afterwards retracted that and said she was aware of the false name and date of birth. She had also known that she was not entitled to a British overseas passport.
(g)While claiming to accept responsibility for the false claims made on her behalf by migration agents, she initially tried to avoid admitting knowledge that her protection visa claims were false, saying that she had been told that she could remain in Australia if she claimed to be a refugee. Asked if she knew what claims were made on her behalf, she responded evasively that the agent had asked about her beliefs. When further asked if she knew about the claim that she had been an activist and organiser, she replied that she had not seen the application, which had been prepared by the agent. Questioned about her knowledge of the false claims made for the protection visa application to the department, in the RRT or in the s 417 application, she sought to absolve herself by saying that she knew nothing of those claims, as they were all made by her agents. She even claimed not to know what was in her partner visa application.
(h)She claimed, in fact, that she had never made the false claims in any of those applications. When it was pointed out to her that she had given oral evidence before the RRT in which she had not only adopted those claims, but actually offered further detail about them, she repeatedly claimed that she could not recall what evidence she had given, or whether she had given evidence at all, or whether or not she had said anything at all. Eventually, when asked if she had put forward untruths of her own before the RRT, she replied that she did not know what to do and knew nothing about the result.
(i)She has given conflicting accounts on whether or not she used the false name in her Hong Kong passport for other purposes while in Australia. At her interview on 6 August 2004, she said she had used the false name in Australia (T p191). At the hearing before this tribunal, she said she had not used it for any other documents such as a driver’s license, bank account or tax file number. But Mr Liu said she did not use her real name at work as her passport and identity documents were in the false name. She even signed her detention documents on 20 February 2004 in her false name (T p108).
(j)She did not even tell Mr Liu what her real name was until one or two years after their relationship commenced. That, of course, was not unlawful, but it does suggest a certain facility in dissimulation and deceit. She said she had paid income tax while working unlawfully in Australia, but had no tax records because her employer had deducted tax instalments from her wages. But, of course, the deduction of tax instalments at source does not absolve the taxpayer from the legal obligation to lodge a tax return. Even a wage-earner can sometimes be assessed for additional amounts of tax. The more probable explanation for her having no tax records is that she did not pay income tax.
(k)She said she had been retrenched from her position at the supermarket because the business was not doing well (ts p54). Later, however, she claimed it was because she was getting old (ts p78).
(l)She stated categorically that it would be impossible for her daughter to attend school in China. She then conceded, however, that she had made no enquiries on that subject. Mr Liu said only that she would be required to pay higher school fees, but did not suggest that she would be barred from the school system. The UNICEF material in Exhibit A7 is consistent with his version.
75. Those inconsistencies, contradictions, implausibilities and inexplicable memory lapses make it impossible to regard the visa applicant as a reliable witness.
The psychiatric and psychological evidence
76. Dr Leonard Lee, a consultant psychiatrist, prepared a report on Anita Liu after assessing her on 20 June 2007 (Exhibit A3). He assessed Anita for about an hour and a quarter with the assistance of her father, Mr Liu. He also spoke on the telephone to Anita’s teachers, Jane Li, supervisor of Angels’ Gardens, for about 15 minutes, and Annette Reardon, director of Kabbarli, for about 30 minutes.
77. Mr Liu had told him that Anita is loving and plays with everyone at preschool. His main concern is that she does not seem to realise that it is not normal for her to be living without her mother. He worries that although she seems normal and happy now, her personality will be affected later in life because of her being separated from her mother.
78. Ms Reardon said that Mr Liu is “doing a terrific job” with Anita, but noted that her behaviour had changed markedly on her return from China. She became stubborn, oppositional and angry. Her behaviour responded to cuddles from the female teachers and herself, and Ms Reardon considers she has a greater need for emotional warmth from females than other children of her age. She also attaches indiscriminately, neglecting to play with children her own age whenever there are new student teachers at the centre.
79. Jane Li, authorised supervisor at Angels’ Gardens, however, could not detect any abnormal behaviour or cognitive problems and said Anita is happy and sociable and enjoys learning. (In her letter of 20 June 2007 Ms Li also said Anita is bilingual and speaks both Mandarin and English, Exhibit A6)
80. In his report, Dr Lee said,
…
Anita was healthy-looking, well dressed and well nourished. She related closely to her father, but was also able to relate to me. She played peek-a-boo with me and enjoyed the game. However, when asked direct questions, she became shy and therefore I could not obtain direct information from her.
There was no evidence of distress during the assessment, but her behaviour may have been different if I was a woman as evidenced from the discussion I subsequently had with Ms Reardon (Exhibit A3 p4).
…
81. In Dr Lee’s opinion, continued separation from her mother is likely to affect adversely the development of Anita’s personality. Her present state of development and welfare, given her separation from her mother and despite her father’s attempts to ameliorate the situation, “are both extremely fragile, given the insecure attachment behaviour described by Ms Reardon” (p5).
82. He continued:
…
Firming her ties to and maintaining continuity in Australia are in her best interests as she was born in Australia, brought up by her father an Australian citizen, and has been educated in Australian preschools. For her to return to China to reunite with her mother as has been suggested … would entail further disruption for her, which would profoundly destabilize her emotionally … Moreover she appeared to prefer to communicate in English than Chinese at the interview (pp5-6).
…
83. Research had showed that insecure attachment relationships confer vulnerability to psychosis, depression, anger, lack of social skills and gender identity, and personality disorder. He concluded:
…
In summary, while Anita appears to be well adjusted, I have grave concerns about the ongoing aspects of separation from her mother because of the importance of a secure attachment figure in promoting emotional health, wellbeing, stability and ability to relate to others on a deeper level. She should be reunited with her mother in Australia (p8).
…
84. At the hearing Dr Lee conceded that there was little evidentiary basis for a diagnosis of attachment disorder and that his conclusion was based on general comments rather than on specific symptoms, but he had “read between the lines” (ts p6).
85. The basis for his forecast was Ms Reardon’s comments, coupled with a theoretical basis derived from research, such as studies of rhesus monkeys that have symptoms of disrupted attachment (ts p7).
86. Her angry or oppositional behaviour could be an indication of detachment, but he had not been told at what level those phenomena had been occurring.
87. Asked why Mr Liu’s citizenship would matter to her development, he replied that it was because he is based here and she has spent much time with him (ts pp10, 20). He agreed that young children often have to move and that it is not always destabilising, but in this case she is insecure. In China she would have her mother, but would have to make a major adjustment and he did not know how much support she would receive in China. He agreed that it was possible that she would have the necessary psychological support in China but explained that he did not know, because he had never been to China. The fact that the families of both parents were there would benefit her if they were supportive (ts pp12-13).
88. Asked whether the potential problems he had listed on page 8 of his report occurred very often in children detached from a parent, he replied that it depends on the circumstances and that ongoing contact could alleviate the situation. He did not know precise numbers on the incidence of such problems in children in such situations (ts pp14-15).
89. Some children who experience moves or separation from a parent can grow up to be normal adults, he said, but if he were given a choice, living in Australia with both parents would be the better option (ts pp18-19).
90. Mr Wilson Wong, a clinical psychologist, met with Mr Liu and Anita at their home for about two hours. He prepared his report (Exhibit A4) on the basis of that meeting and reports received from the two preschools she attends.
91. Mr Wong’s observation of Anita at the visit was as follows:
…
Observation
Anita was reactive to my visit and my questions. She appeared to be very playful. She was able to have voluntary conversation. She was able to point to a photograph to identify her mother to me. She expressed that she missed her mother. Mr Liu reported that she talked to her mother almost every day on the telephone. She cried sometimes after talking to her mother.
Anita actively showed me a mother’s day card, which she made in school, for her mother. She smiled and was proud of her “work”, as she was asked, if it was for her mother.
She was neat and tidy. According to Mr Liu, she was capable to bath herself and help to dress herself. While I was there, Anita tried to put on her socks. She had also tried to show off her skills in dancing.
Examining the reports provided by the kindergarten, the reports showed that Anita had been developing normally both cognitively and socially. Anita’s language skill appeared to be slightly behind. It affected her communication with her peers and teachers (pp2-3).
…
92. A study by John Bowlby stated that if a child experienced sudden abandonment or separation from the mother within the first three years of life, the child will be at risk for attachment disorder. Phyllis Bosely had listed a large number of demonstrated symptoms of attachment disorder, one of which was learning difficulties or disorders. Mr Wong thought that one was applicable in the present case, as Anita’s language skill appeared to be slightly behind.
93. Although Mr Liu could bring Anita up, she would benefit from having her mother with her, especially during puberty.
94. Mr Wong concluded that:
…
Anita is an Australian citizen, who was born in Australia, brought up in Australia and educated in Australia. She is entitled to the quality of life in Australia, which includes the guaranteed individual freedom, sound social welfare system, free education system and healthy natural environment.
Anita is also entitled to grow up with and being cared for by her own mother in the same way as every other Australian child (p5).
…
95. Lacking those, she would have personality problems and other mental disorders which, as a future mother, she would pass on to the next generation.
96. Returning to China was not an option because of the quality of life Mr Liu and Anita enjoyed in Australia. It would not be “fair and reasonable” to expect Anita to return to live with her mother in China, and the family’s “Australian dream would be shattered”.
97. In his view, “For the best interests of Anita, Yue Qin Xu, mother of Anita should be granted a partner visa to reunite with the whole family and in Australia and take care of her” (p5).
98. At the hearing Mr Wong said that when he spoke to Anita she responded with short answers, mostly in Mandarin. When he addressed her in English, she answered in Mandarin and speaks that language with her father. He conceded that was possibly the reason why she is slightly behind in English skills, but added that children pick up new languages very easily up to the age of about seven (ts pp25-26).
99. He had seen nothing abnormal in her behaviour and no crying, but her over-familiarity and use of short sentences was like that of other children in childcare centres. She is herself in childcare, and that would affect her development (ts p26).
100. Mr Wong said that she is not in any way impaired and he did not wish to speculate that she was suffering from anything (ts p31). In his report he had said that her slight English language deficit could be seen as a symptom of attachment disorder, but he explained that he did not wish to place too much emphasis on attachment disorder, but was really saying that it could be the beginning of future disorders (ts p33).
101. It was put to Mr Wong that his emphasis on what he called Anita’s entitlement to be raised and educated in Australia was really based on legal or political arguments, he agreed but said they were also matters of basic human rights and practical matters affecting welfare (ts pp27-28, 36).
102. When asked in re-examination whether Anita could grow up to be a normal adult even though living apart from her mother in her childhood, Mr Wong said that she could, but it was possible that if both her parents were in full-time work there could be a tendency towards autism and some effect on her brain development.
103. When then asked which outcome was the more likely, Mr Wong said it was hard to say which was the more likely. When the question was repeated in a form making it clear that a different answer would not be unwelcome, he replied that there could be different degrees of severity, but it was more likely that her development would be affected (ts p37).
Observations on the psychiatric and psychological evidence
104. A striking feature of the expert evidence was the gap between Anita’s observed conduct and behaviour on the one hand, and the severely negative future consequences predicted by the expert witnesses. Dr Lee observed nothing abnormal about Anita, noting that she was well adjusted, healthy looking, well dressed and well nourished. Her teacher Jane Li described her as happy and sociable and as enjoying learning. Her father said she seems normal and happy now.
105. That does not conclude the matter, of course, as the expert evidence stated that children who appear outwardly normal can be harbouring inner symptoms of psychological disorders. Dr Lee agreed, however, that the entirety of his adverse conclusions was based on Ms Reardon's remarks about Anita’s behaviour since her return from China. Ms Reardon apparently has no qualifications as a psychologist and gave no evidence in these proceedings.
106. Dr Lee also conceded that all he had from Ms Reardon was a general statement containing no specific evidence of a disorder and that it was only by reading between the lines that he had been able to reach his conclusions. Even then, his conclusions would depend on the level at which the conduct observed by Ms Reardon had occurred.
107. Dr Lee’s report does not weigh Ms Reardon’s observations against evidence pointing in the other direction, such as that of Ms Li or Mr Liu. Nor does the report give any reason for not doing so.
108. The report gives weight to irrelevant (for psychological purposes) circumstances, such as the fact that Anita’s father is an Australian citizen and that she was born in this country (as opposed to having attachments here: ts p18). At the hearing he resiled somewhat by saying that Mr Liu’s citizenship was relevant because it meant that he was based in Australia. But he also said that Mr Liu is Anita’s primary attachment figure and did not explain why it mattered where he was based as long as she was with him.
109. The report also stated that for Anita to return to China to reunite with her mother “would entail further disruption for her, which would profoundly destabilize her emotionally” (p5). At the hearing, however, he conceded that children often move and are not always destabilised by the experience. In China Anita would have her mother, but she would have a major adjustment to make and he did not know how much support she would receive in China. He agreed it was possible that she could have the psychological support she needed in China but said he did not know because he had never been to that country. He agreed that the fact that the families of both her parents live in China would benefit her if they were supportive.
110. He also agreed that the problems caused by living apart from one parent could be alleviated if there were ongoing contact with him or her. He knew of no precise numbers about the ratio of cases where there were no problems to cases where there were.
111. His assertion that she should be reunited with her mother, in Australia specifically, was not based on any psychological data or research.
112. Mr Wong also assessed Anita very favourably, except that her language skill appeared to be slightly behind, but agreed that the cause might have been her preference for speaking Mandarin. Children pick up languages very easily up to the age of seven, he added.
113. Mr Wong’s report stated that Anita showed that she is happy with her father and feels secure in his presence. She has also attached to her mother as well as her nanny and Ms Reardon. Apart from the language point, the only negative in her behaviour was that she sometimes cries after talking to her mother on the telephone.
114. Much of Mr Wong’s evidence, however, rested not on matters of psychological expertise but on legal or political arguments based on entitlement or universal human rights. He sought to justify those contentions as matters of practical realities concerning her welfare, but demonstrated no connection between those matters and Anita’s psychological well-being.
115. Dr Lee was invited by the applicant’s solicitors to give evidence in a letter dated 19 June 2007 (Exhibit A5). That letter contained the following passage:
…
We need your medical legal evidence to support that the partner visa refusal of Anita Liu’s mother and the consequent result of separation between the mother and daughter will have seriously adverse impact on Anita Liu’s character growth as she was born in Australia, grew up in Australia and currently lives with her father in Australia alone.
We understand that your hourly rate is $300. Please bill the client directly. …
…
116. Those instructions are a far cry from the usual codes of conduct relating to such evidence, such as the guidelines for expert witnesses in proceedings in the Federal Court or Advocacy Rule A33 (part of r 23 pf the Solicitors’ Rules), which reads:
…
A practitioner must not suggest or condone another person suggesting in any way to any prospective witnesses … the content of any particular evidence which the witness should give at any stage of the proceedings.
…
117. Dr Lee said that, nevertheless, his opinion was his own. But the rationale for provisions such as Advocacy Rule A33 is presumably that such instructions or suggestions are likely to influence the expert witness’s testimony, and there is some reason to believe that may have happened here. Apart from the fact that his report corresponds exactly with those instructions, Dr Lee’s reliance on “reading between the lines” of general and admittedly tenuous material received from Ms Reardon, coupled with the unexplained disregard of contrary evidence and the tendency of both witnesses to make assertions outside their field of expertise suggest a certain lack of objectivity and independence.
Applicant’s submissions
118. The applicant’s solicitor, Mr Rados, adopted the submissions contained in the applicant’s statement of facts and contentions (Exhibit A1) and pointed out that most of the visa applicant’s offences were admitted, including her use of a bogus passport and visa. There were, however, mitigating circumstances. She had wanted to escape a violent marriage, but no help was available to her in her home town at the time. She may not have known the detail of the protection claims made in her application, as she did not have them read to her. The same was true of the claims made to the RRT, although she had never seen them, and also the s 417 application. She does not blame her agent for the misrepresentations but takes full responsibility for them.
119. She had revealed her identity to the department at the time of making the protection visa application and had surrendered the bogus passport. She denied, however, making false representations in her visitor visa application, as she had nothing to do with that application. The visa was already in place in the bogus passport.
120. She had worked purely in order to survive and Mr Liu had in due course asked her to stop. She had resumed in 2004 for the purpose of helping him to buy a ticket to return to China for his grandmother’s funeral. It was conceded that she had worked from late 1997 to early 2002, and that she had resumed in February 2004, in breach of condition 8101 of her visa.
121. Her motive from the start had been to flee from violence. That was her primary reason for obtaining the false passport and the visa. She had returned to her home town only for the purpose of obtaining a divorce. She had not used her false identity in relation to any other legal matter, including obtaining a tax file number.
122. In relation to the false answer in her spouse visa application about whether she had ever left a country to avoid removal, her uncontradicted evidence was that her intention was to leave voluntarily. The form she had signed in relation to her detention (T p108) offered her four options and she had elected the first one, voluntary departure. Consequently, she did not leave Australia in order to avoid removal. Her answer in relation to debts to the Commonwealth was incorrect, but at that time she was unaware of the debt. When told about it at her interview (T p129) she had said that she wanted to pay the debt, and did so.
123. She had not stayed unlawfully in Australia after 19 November 1998, for the reasons advanced in Exhibit A1, pp20-27. As the letter informing her that her protection visa application had been refused (T pp70-71) had not complied with s 66(2) of the Act, she had not been validly notified. Consequently, the bridging visa granted to her in connection with her protection visa application had never expired.
124. Mr Rados argued that there is no authority for saying that a failure to read a form constitutes misconduct, though the visa applicant is responsible for the contents. He conceded, however, that the visa applicant does not pass the character test in s 501 of the Act and also conceded that her conduct was serious within the meaning of paragraph 2.6 of Direction No 21.
125. On the other hand, the risk of recidivism was extremely low, and could not be otherwise unless it could be shown that there had been sustained, blatantly dishonest conduct without remorse or mitigation. The visa applicant has, however, expressed remorse and there are mitigating circumstances.
126. Community expectations would be influenced by sympathy for one who had fled from a difficult life, and especially because of the hardship she is experiencing due to the separation from her child.
127. In considering the best interests of the child, Anita, it was necessary to note that she has become attached to her friends, her teachers and the director of the Kabbarli Centre. Her main language is English and her character and development are consistent with an Australian character. She is more adaptable to Australian conditions and experienced problems on her previous visit to China.
128. The one-child policy enforced by the Chinese government is common knowledge, as is the hukuo family registration system. The visa applicant has used up her quota because of the son from her previous marriage. Anita would have no access to health, education, social benefits and perhaps employment in China. She would be treated as an outsider.
129. Her interests are such that she should be permitted to live in Australia with her mother. Dr Lee, a child psychiatrist, had stated that continuity of her life in Australia is in her best interests and that moving to China would be profoundly destabilising. The psychologist Mr Wong had also stated that her best interests lay in being reunited with her mother in Australia. That expert evidence was uncontradicted.
130. The case was distinguishable from Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617 because in that case the visa applicant had been motivated by money, had used a false passport and had failed to declare that an earlier visa application had been refused. In the present case, Ms Xu had worked only in order to survive. In Zhang, the visa applicant had blamed others for his misdeeds, whereas the applicant blames no-one. The child in that case was aged only three months, whereas Anita is three years and 11 months old and has lived here for most of her life. She has firm ties to her school, teachers and friends and her mother-tongue is English. Further, in this case, the visa applicant gave oral evidence.
131. The psychological evidence of Dr Lee and Mr Wong had been lucid and consistent and was probative of the best interests of the child. It was not necessary that it should have a perfect factual foundation, a reasonable basis being sufficient.
132. The child’s best interests involve assessment of future contingencies. There are multiple possibilities and one can only speculate about them. The function of the tribunal was to select the best one, which was to issue a visa so that the child could be reunited with her mother in Australia.
133. Material obtained from the websites of UNICEF, the World Health Organisation and the UNDP Human Development Report (included in Exhibit A7) showed that the under-five mortality rate in China was 27 per thousand live births, as against six per thousand in Australia. Improved water was generally available in Australia, but not in substantial parts of rural China (although there was no evidence about the position in the visa applicant’s home town). Gross national income per capita in China was US$1,740 according to UNICEF, or US$6,600 according to the World Health Organisation, as against $32,220 in Australia. Life expectancy at birth for women in China was 74 years as against 84 years in Australia. A combined primary, secondary and tertiary education gross enrolment ratio was 70.4 percent in China as against 113.2 percent in Australia which ranked first in the world on that scale (the interpretation of a figure exceeding 100 percent is not clear).
134. As regards access to education, UNICEF reported that “the current hukou residency system often denies migrant children access to free public education and health care, but reforms are underway”. According the US Department of State, China’s 2002 Population and Family Planning Law and policy permit one child per family, with allowance for a second child under certain circumstances, especially in rural areas.
135. The effect of Burchett J’s remarks in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 522 is that the child’s best interests are a matter of expert opinion and it is not open to a lay decision-maker to rely on ordinary human experience when reaching a decision, in preference to the expert opinion.
136. In Re Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474, the tribunal had set aside a decision refusing a spouse visa to a non-citizen with an extremely bad migration record. The present case was even stronger than Howard because the visa applicant had admitted her conduct to the department and before the tribunal. In Howard, the tribunal had given weight to the hardship that visa refusal would impose on an Australian family. In the present case two Australian citizens would suffer hardship, Mr Rados concluded.
Application of the Law and Findings of Fact
137. 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).
…
138. On the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness (Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781).
139. 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).
140. 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.
141. 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)).
142. 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.
143. In this case the applicant admits that the visa applicant fails the character test in s 501 of the Act (ts pp2, 95), a conclusion I would have reached in any event. Not all of the actual contraventions of migration law are admitted, however. In particular, the applicant contends that the bridging visa issued to the visa applicant in connection with her protection visa application was not validly cancelled for the reasons outlined above, and is thus still in force. Consequently, the visa applicant did not remain unlawfully in Australia for approximately six years. The respondent's claims on this point were either exaggerated or completely wrong and, further, “for the Respondent to suggest otherwise on his own calculation is both wrong and impertinent” (Exhibit A1, p16).
144. In view of the concession noted above, those submissions are not relevant to the application of the character test, but they could have a bearing on the exercise of the discretion.
145. The bridging visa in question was a bridging visa C (WC-030) granted on 27 January 1998 (T 309). On the face of it, the respondent’s letter of 29 January 1998 informing the visa applicant that her protection visa application had failed (T pp70-71) was defective in that in explaining the time within which any RRT review should be sought was 28 days from the date of the letter, when in fact the letter should have allowed 28 days from the date the letter was posted. But even if that defect negated the cancellation of the bridging visa, the RRT’s exercise of jurisdiction on review would have had the effect of curing any procedural error in the decision making process below (Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, 353-54, Full Court of the Federal Court).
146. In any event, as the respondent pointed out in its letter to the applicant's solicitor of 28 June 2007 (Exhibit R3), the bridging visa did not expire through the effluxion of time pursuant to para 030.511(b)(ii) of Schedule 2 of the Migration Regulations 1994, but pursuant to para 030.511(b)(iii)(A), because the visa applicant applied for review before the expiration of 28 days after the department’s initial refusal. Consequently, the bridging visa expired 28 days after the notification of the RRT’s decision.
147. In his statement of facts and contentions of 15 August 2007 (Exhibit A1), the applicant did not refer to the legal arguments contained in Exhibit R3. Nor did he attempt to reply to them in his submissions at the hearing. The respondent’s position on this point appears to be sound and I therefore conclude that the visa applicant’s bridging visa C expired 28 days after notification of the RRT’s decision of 15 October 1998. The applicant does not dispute that, in that event, the visa applicant remained in Australia as an unlawful non-citizen for at least five years and six months and worked unlawfully without permission during that time. The visa applicant also admitted at the hearing that she knew she was staying and working unlawfully (ts p50).
148. I am therefore satisfied that the visa applicant came to Australia on a bogus passport and visa, lodged a protection visa application based on claims most of which she knew to be false, persisted in those claims before the RRT and in her oral evidence before that tribunal, and maintained the false claims in her s 417 application. She knowingly remained unlawfully in Australia for at least five and a half years, working throughout that period. She lodged no tax returns and probably paid no income tax. She also gave two false answers to question 71 in her partner visa application. She repeatedly gave materially false evidence at the hearing before this tribunal.
149. The applicant submits that she surrendered her false passport to the department at the first opportunity. The first opportunity, however, was at the airport on the day of her arrival, on 16 October 1997, but she did not surrender it until 5 November 1997 (supplementary T documents), and then only because it fitted in with her false protection visa claims (T pp 88, 95, 96).
150. In relation to the untrue answers in her partner visa application, the applicant submits that the visa applicant was unaware that she owed the debt of $1,000 in connection with the RRT appeal and paid it promptly when she was told about it. I do not accept that, as she was twice informed about the fee in writing in the course of her RRT and s 417 applications.
151. In relation to her false answer to the question “have you … ever … left any country to avoid being removed or deported?” (T p177), the visa applicant claimed that she departed voluntarily and that the answer was consequently correct. The basis for that claim was said to lie in the four options offered to her in the detention form that she signed on 20 February 2004 (T p108).
152. The first option offered was “You may depart Australia voluntarily by purchasing a ticket to leave as soon as possible”. The second and third are not relevant, but the fourth stated, “If none of the above is applicable, the department will remove you from Australia as soon as possible”. It is not possible as a matter of legal interpretation, or probable as a matter of common sense, to interpret the first option in isolation and without regard to the fourth. The document makes it plain that the detainee is being offered the opportunity to depart voluntarily, but if she does not, she will be removed. She had not previously made any attempt to leave Australia. By accepting that option, she was clearly leaving Australia in order to avoid being removed. Her decision was not unprompted.
153. In connection with the partner visa application, it should also be noted that as late as 2 April 2006 she claimed that she thought the bogus passport was valid (T p337). At the same time, the applicant's statement of facts and contentions states that she knew the passport was false (Exhibit A1, p15). From there, the applicant proceeds to argue that by answering “N/A” in response to the question “Give details of the travel documents you used to enter Australia” in the protection visa application, the visa applicant was not giving false information because she understood the question to relate only to valid travel documents (Exhibit A1, pp14-15). Not only is that a most implausible excuse, but it contradicts her own claim that she thought the passport was valid.
154. Mr Rados submitted that the visa applicant has accepted responsibility for her migration misconduct and does not seek to blame her agents or anyone else. Yet in relation to every stage of her migration history, including her partner visa application, she seeks to absolve herself by saying that everything was done by her agent. The respondent argued that by maintaining these two inconsistent positions, the visa applicant was accepting responsibility only for appointing an agent to lie on her behalf. I do not think her approach is as subtle as that, however. She is accepting responsibility only as a matter of form, so as to enable her to claim remorse for her migration law violations, but in substance is still denying responsibility.
155. In view of the concession noted above that the visa applicant fails the character test, I must now consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether to grant 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.
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156. Paragraph 2.3 sets out the primary considerations:
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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.
…
157. 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.
158. 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
159. 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. In this case, the visa applicant came to Australia on a bogus passport and has made multiple false or misleading statements in connection with entry or stay in Australia. She continued to do so in her evidence at the hearing. Her contempt for the migration laws of Australia contrasts strikingly with her evident respect for those of China in Hong Kong (ts p65). Mr Rados stressed that the sole motive for her unlawful conduct was to escape domestic violence, but she could have achieved that goal more conveniently by staying in China. She would also have been able to maintain some contact with her nine year-old son.
160. It is plain that the visa applicant is a person who will say or sign anything in order to obtain a benefit. In my view her conduct must be viewed as very serious.
161. 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. As was pointed out above, her attempts to mislead the tribunal in her oral evidence do not suggest that she is rehabilitated and her professions of regret and remorse must be treated as purely formal and superficial. There must therefore be a significant risk of recidivism in this case. In Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714, the tribunal had this to say (at para 33):
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In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.
…
162. 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.
163. While visa refusal 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. The applicant contended that the totality of the circumstances in this case suggests that that no real deterrent value would be achieved by refusing a visa.
164. The respondent, on the other hand, argued that deterrence in an important factor in this case because it is an example of an all too common scenario in which non-citizens arrive on false passports, pursue false protection claims, overstay and work unlawfully, and then enter into a marriage or de facto relationship with a citizen or permanent resident. The visa applicant was under the impression that she would obtain a visa if she married a permanent resident and had a child. Mr Liu shared that view. Both said that if this application were unsuccessful, they would keep appealing and applying until they succeeded (ts pp30, 31, 62). There appears to be a common belief within parts of the Chinese community that this is a good way to go about obtaining permanent residency and that no matter how serious a visa applicant’s migration law violations, persistence will produce the desired result. Such an approach, Mr Eteuati submitted, undermines the integrity of the migration system. If so many people believe that they can enter Australia unlawfully and obtain permanent residency in that way, affirming the decision in the present case would have a strong deterrent effect.
165. I agree that deterrence is a factor to be weighed in this case, although not a decisive one. In particular, it needs to be balanced against the best interests of the child, which are discussed below.
Expectations of the Australian Community
166. 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.
…
167. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. 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]).
168. 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, and the position of Anita Liu, an innocent victim of her mother’s misconduct, is a primary consideration that must be seriously considered. Nevertheless, on the evidence in the present case, I consider that community expectations on balance weigh against the grant of a visa to the visa applicant who has engaged in such consistent and sustained abuse of the migration system. In reaching that conclusion, I note that Deputy President Purvis expressed similar views in his recent decision in Zhang (paras 33-35) in circumstances very comparable to those in this present application.
The Best Interests of the Child
169. 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 that 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)).
170. The Full Court in Wan (at p142) made it clear that provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the child, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children.
171. Commenting on that passage, Deputy President the Hon CR Wright in Re Barattini and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 157 noted that:
…
The Court was at pains to point out that such a finding did not automatically entitle a person determined to be not of good character, to obtain a visa for entry to Australia. Were it otherwise persons who had failed the character test would be able to subvert the primary purpose of Section 501 of the Act by bearing or fathering a child – a rather radical ploy which has not been entirely unknown on past occasions. There is of course no room for such a suggestion in the present case (at para 34).
…
172. This consideration was the central focus of most of the evidence and the bulk of the submissions in this case. Ms Xu has two children. The first is over 18 years old and is living with his father in China. The second, Anita Liu, born on 10 September 2003, is an Australian citizen and is currently living with Mr Liu in Sydney. It is not disputed that he is caring for her very well and that she is healthy, contented and thriving.
173. The applicant relied heavily on the evidence of Dr Lee, the psychiatrist, and Mr Wong, the clinical psychologist. He submitted that the best interests of the child are a matter of expert evidence and that the effect of Burchett J’s observations in Fuduche referred to above is that a decision-maker cannot substitute his or her lay views for the opinions expressed by the experts.
174. It is plain from Direction No 21, however, which requires the tribunal to take into account a wide range of factors, most of which are not matters of psychiatric or psychological knowledge, that the issue is not so confined. Psychology and psychiatry may have insights that are relevant to the issue, and within the area that they cover lay opinion yields to expert opinion, but it is for the tribunal to reach a decision on the totality of the evidence.
175. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, a much-quoted judgment of Heydon JA outlines the requirements to be met if expert evidence is to be admissible (at [85]). While admissibility is not central in a tribunal not bound by the rules of evidence, those criteria are relevant to the weight to be accorded to such evidence. They include the requirements that observed or assumed facts be identified and proved, that it be established that the facts on which the opinion is based are a proper foundation for it, and that the opinion is wholly or substantially based on the witness’s expert knowledge.
176. The reasoning process and factual basis must be demonstrated because an expert’s bare ipse dixit carries little weight (Makita at [59]; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [80]-[81]).
177. For the reasons given above, the evidence of the experts in this case is not of great assistance. In so far as it supported the proposition that it would be better for Anita to be raised by both her parents living together, I accept it, and in any event, the Direction treats that proposition as the basis of the tribunal’s consideration.
178. In so far as it advocated the grant of a visa so that the family can be reunited in Australia, it does not merit substantial weight. It relied on matters that did not fall within the witnesses’s area of expertise; it was based on media reports and similar sources rather than on psychological data; and there was reason to doubt the witnesses’s independence and objectivity. The factual basis was tenuous, as became apparent when Dr Lee conceded that moving to China might not be harmful to Anita if she received adequate family support there, and admitted that he did not know whether Ms Xu’s and Mr Liu’s respective families would be supportive or not.
179. Mr Liu said that if a visa were refused, his preferred option would be to keep Anita in Australia with him and take her to stay with her mother during vacations. In the meantime she is talking to her mother daily on the telephone.
180. Dr Lee conceded that the effects of separation from a parent could be alleviated by ongoing contact. There is no reason why the contact described by Mr Liu could not continue. In that event, of course, the concerns about the conditions in which Anita might live in China would be irrelevant.
181. In that connexion the applicant relied on publicly available materials from UNICEF and other bodies (Exhibit A7). Nothing in that evidence supports the applicant’s contention that the child would have no access to education or health care, or that she would be adversely affected by the one child per family policy.
182. It seems likely that, if she retained her Australian citizenship, her parents would be required to pay higher school fees, but there is nothing to suggest that those fees would be prohibitive or unmanageable. Nor is there any evidence to show that the standard of education available in China is in any general sense inferior to that available in Australia. China’s nationwide literacy rate is 90.9 percent (Exhibit A7).
183. In due course, as an Australian citizen, Anita could choose to undertake tertiary study in Australia, as many thousands of Chinese students are currently doing. In the meantime, as the preponderance of the evidence shows that her primary language is Mandarin, she should have no particular difficulty in adapting to Chinese education.
184. The health statistics relied on by the applicant show Australia in a better light than China, but they are national averages, and as Exhibit A7 notes, there are marked differences between the coastal provinces, such as Fujian where the visa applicant lives, and the rural interior. Even so, as the respondent noted, most of the differences (except for national income per capita) are relatively small. For some, such as the percentage of underweight children under five, there are no Australian figures supplied. On the other hand, there are no statistics for childhood obesity, a serious problem in Australia. Health considerations may not, therefore, all point one way.
185. In this context I note Deputy President Purvis’s finding in Zhang that there was no reason to believe, and no evidence to support a finding, that the child would be adversely affected in relation to education or health by living in China (at para 36).
186. Exhibit A7 and the other evidence do show, however, that in the medium term at least the child would be likely to have a more comfortable life and upbringing in Australia than in China. To that extent it is in the best interests of the child that Ms Xu be granted the visa she seeks.
Other considerations
187. 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 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.
188. All of Mr Liu’s family members other than Anita are currently living in China, as are Ms Xu’s, other than Mr Liu and Anita. Apart from that, Ms Xu has no business or other contacts with Australia.
189. The partner application relates to both a temporary visa and a permanent visa. It is not disputed that Mr Liu and Ms Xu are in a genuine de facto relationship. Mr Liu said that if a visa were not granted, he would remain in Australia with Anita, returning to China with her to stay with the visa applicant during holidays. In between times, it could be expected that Mr Liu would suffer some hardship as a result of the separation, and that gives him a compassionate claim. But the fact that he knew about her unlawful status from an early stage in their relationship affects the weight to be given to that claim: Re Dumbrell and Department of Immigration and Multicultural Affairs [2000] AATA 443 at para 35. It should also be noted that he has said that if the application fails, he prefers to remain in Australia rather than rejoin the visa applicant in China where he believes he faces uncertain prospects of employment.
190. Past tribunal decisions have also drawn attention to the unwisdom of bringing a child into the world when there is no assurance that the family will be able to live together in the country of their choice: see eg Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1308 at [134] and Re Chor andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 766 at [50].
191. There is no evidence of rehabilitation or recent good conduct by the visa applicant, and indeed her repeated attempts to mislead the tribunal at the hearing point to the opposite conclusion.
192. While the interests of the child are and must be a primary consideration, in cases where there has been very serious migration misconduct and little evidence of rehabilitation, the tribunal has in the past held that community protection and expectations have outweighed the best interests of the child and the other considerations: see eg, Zhang, Chor and Qui above; Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240; Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65.
193. This is such a case. The decision under review is affirmed.
I certify that the 193 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ......................[sgd]................................................
R. Wallace, AssociateDate/s of Hearing: 16, 17 and 28 August 2007
Date of Decision: 25 October 2007Solicitor for the Applicant: Mr Ivan Rados, Chancellor & Rados
Solicitor for the Respondent: Mr Tigiilagi Eteuati, Clayton Utz
- AGLC
- Liu and Minister for Immigration and Citizenship [2007] AATA 1887
- Case
- [2007] AATA 1887
- Decision Date
CaseChat Overview and Summary
The court held that the visa applicant's breaches of Australian migration laws and false testimony at the tribunal hearing demonstrated a lack of respect for Australian laws and values. The court found that the community's expectations weighed against the grant of a visa in this case. Although the best interests of the child were considered, the court concluded that community protection and expectations outweighed this consideration, along with other factors. The court affirmed the decision under review, denying the visa applicant a spouse visa.
The court's decision was based on the weight of evidence presented, including the visa applicant's breaches of migration laws and false testimony. The court found that the community's expectations and national interests were paramount in this case, and that the best interests of the child were not sufficient to override these considerations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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