Lo and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 140

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 140

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1116

GENERAL ADMINISTRATIVE DIVISION		)
Re		Wai Kuen Lo

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date11 February 2005

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – spouse visa – refusal of visa on character grounds – past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s immigration misconduct including entering Australia using a false name and with fraudulent documents, lodging and appealing a protection visa based on grounds which the visa applicant knew to be false, breaching the conditions of a bridging visa, working without permission and remaining in Australia as an unlawful non-citizen – examination of the visa applicant’s previous spouse application – examination of the applicant’s medical condition – necessity to balance the protection and expectations of the Australian community against the hardship to the applicant – found that the visa applicant’s immigration misconduct was serious, intentional and prolonged – visa applicant fails the character test – the protection and expectations of the Australian community outweigh the exercise of the discretion – decision of the respondent is affirmed.

Migration Act 1958 ss 499, 501, 501(6)(c)(ii)

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

Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935

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

Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828

Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038

ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

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

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

REASONS FOR DECISION

11 February 2005	Professor GD Walker, Deputy President
Summary

1.      The visa applicant, Hong Chen, who is aged 31 and a citizen of the People’s Republic of China, arrived in Australia on 18 September 1997 on a Taiwanese passport and visa.  On 21 September 1997, she applied for a protection visa which was subsequently refused.  She departed Australia on 8 June 1999 and on 10 September 2002, applied for a subclass 309 spouse (provisional) visa to reside in Australia with the applicant, Wai Kuen Lo.

2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Ms Chen fails the character test under s 501 of the Migration Act 1958 (“the Act”) on the grounds that she entered Australia using a false name and with fraudulently obtained documents, she lodged an application for a protection visa containing false and misleading statements, she was located working without permission and that she broke the conditions of a bridging visa issued to her.  The respondent therefore refused Ms Chen’s spouse visa application.  This is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Wai Kuen Lo, was born in Penang, Malaysia, on 13 December 1939 and is aged 65.  Mr Lo was granted Australian citizenship on 27 October 1998.  Mr Lo married his second wife, Qian Yu Song on 11 August 1993, the marriage ending in divorce in approximately April 1996 (T p241).  On 2 April 1997, Mr Lo married his third wife, Hui Li Guan, the marriage ending in divorce on 4 October 2001 (T p158).  No children were born of either marriage.  Mr Lo sponsored both Ms Song and Ms Guan to come to Australia as his spouse.  Mr Lo has a son from his first marriage, Justin Kah Weng Lo, born on 9 November 1973 and aged 32, who resides in Australia.  Mr Lo is in receipt of age pension.

4.      Ms Chen was born in Fuzhou, China, on 6 September 1973 and is aged 31.  Ms Chen arrived in Australia on 18 September 1997 on a Taiwanese visitor visa valid until 18 December 1997, and with a Taiwanese passport, both issued in the false name of Chen Hsin Hui, born September 1971 (T p34).   

5. On 18 December 1997, Ms Chen, using her true identity, applied for a protection visa (T p39) on the grounds that she was a member of an organisation called “Qing Wu Tuan” which worked to inform the Chinese people about corrupt government officials (T p35). On 9 January 1998, she was given an associated bridging visa C subject to a “no work” condition (T p37). Her protection visa was refused on 14 April 1998 (T15 p82) and the decision affirmed by the Refugee Review Tribunal (“RRT”) on 17 March 1999 (T pp115-123). On 1 April 1999, a decision was made that her application did not satisfy the criteria for the exercise of discretion on humanitarian grounds under s 417(1) of the Act (T p112). On 22 March 1999, the then solicitors for Ms Chen, Leitch Hasson Dent, applied for ministerial intervention under s 417 of the Act.

6.      On 26 March 1999, Ms Chen was located working in a massage parlour without permission and subsequently detained in the Villawood Immigration Detention Centre, New South Wales.   She was released on a bridging visa E subject to conditions, upon payment of a $5,000 security (T p12).   

7.      On 16 April 1999, Ms Chen and Mr Lo met at the Tasty House Chinese restaurant in Ashfield, New South Wales (T p143).

8.      On 21 April 1999, Ms Chen’s application for ministerial intervention was refused (T22 p125).

9.      On 17 May 1999, Ms Chen was detained after being located as an unlawful non-citizen.

10.     On 2 June 1999, Ms Chen married Robert Joshua Pike, born 13 July 1925 and aged 74 at the time of their marriage.  On 8 June 1999, she departed Australia and returned to China (T24 p129).  A spouse visa application was subsequently lodged, and in September 2000 refused.  

11.     On 29 April 2001, Mr Lo telephoned Ms Chen in China and a relationship commenced from that date.   On 9 August 2001, Mr Lo went to China to see Ms Chen and to meet her relatives, returning to Australia on 19 August 2001 (T p209). 

12.     On 11 October 2001, the marriage between Ms Chen and Mr Pike ended in divorce (T p160).

13.     On 27 November 2001, Mr Lo again visited Ms Chen, returning on 4 December 2001 (T p208).  On 29 January 2002, Mr Lo went to China and on 8 February 2002, he and Ms Chen registered their marriage with the Fuzhou Foreign Marriage Registration department.  On 17 February 2002, he returned to Australia (T p208).  Between 7 June 2002 and 19 June 2002, Mr Lo and Ms Chen holidayed together in Penang, Malaysia (T p185).

14.     On 10 September 2002, Ms Chen lodged an application for a subclass 309 spouse (provisional) visa with the immigration office at the Australian Consulate General in Guangzhou (T29 p136). In her application, Ms Chen answered “no” to question six that she had never been refused a visa (having been denied a spouse visa when married to Mr Pike) (T p136).  She also did not include at question 52 details of Mr Lo’s first wife (T p141).  On 11 September 2002, Ms Chen was requested to provide further information to the immigration office which she did under cover of letter dated 21 October 2002 (T32 p172).   In January 2003, Mr Lo and Ms Chen holidayed together with Penang, Malaysia (T p276).  On 15 January 2003, an officer on behalf of the Vice Consul (Immigration) advised Ms Chen that as Mr Lo had previously sponsored two other spouses to migrate to Australia, her sponsorship could not be approved until she satisfied the Minister that there were compelling reasons why this sponsorship should be approved (T34 p211).   On 13 February 2003, Ms Chen responded stating that she needed to be allowed to come to Australia to look after Mr Lo because he had suffered two heart attacks, in 1995 and 2002, and had undergone bypass surgery and had also been involved in an accident in 2001, injuring the right side of his body, and that he needed someone in case of a medical emergency and to care for his personal and household needs (T35 p213).  She also submitted a letter from Dr NC Patel, consultant physician and cardiologist (T36 p215).

15.     On 27 February 2003, a senior migration officer at the Australian visa office informed Ms Chen that her spouse visa application was refused on the grounds that there were no compelling reasons to allow the sponsorship (T37 p216).  On that day, Ms Chen telephoned the visa office and during a telephone interview informed the senior migration officer that she had paid 160,000 RMB for her passport; that she travelled to Vietnam on her Chinese passport where she collected her Taiwanese passport from the group organiser, travelling to Australia with a group of 15 or 16 and that upon arrival, eight of them were taken to a group house at Cabramatta where she stayed for six months before moving to another group house (T pp293-294).

16.     On 7 January 2004, the Migration Review Tribunal (“MRT”) on appeal decided that the matter should be remitted back to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) with a direction that there were compelling circumstances to waive the sponsorship limitation (T44 p245).

17.     On 11 March 2004, a senior migration officer at the consulate informed Ms Chen that he was considering refusing her spouse visa application on the ground that she did not pass the character test because of her past and present general conduct including that she entered Australia under a false name with fraudulently obtained documents, that she remained in Australia as an unlawful non-citizen and that she worked illegally during this time (T49 p266).   On the same day, Ms Chen was interviewed by an immigration officer at the consulate.  At that interview, she admitted that she entered Australia using a false name and that she did so because she wanted to go to Australia.  She also stated that she divorced Mr Pike because her spouse visa application was refused (T50 pp268-269).  On 7 April 2004, Ms Chen made written submissions to the consulate stating that she did not know that she would be receiving a false passport to enter Australia and that she was told by Mr Fong, the organiser: “If you refuse to accept, you still had to pay or your family would be in trouble” (T p274).  She said that when she arrived she “did not know the Australian laws”, she had a valid visa when she was “trapped” and detained, and she worked illegally to support herself.  She concluded:  “When I was in Australia, I was only 23 years old.  My thinking was not mature. As result, It happened the above matters which were not organised criminal activity.  I was deceived and forced me to accept using a Taiwan passport to enter Australia. Otherwise my family would be in trouble” (T p275).

18.     On 14 August 2004, a delegate of the Minister decided to refuse Ms Chen’s subclass 309 spouse (provisional) visa on the ground that she did not pass the character test because of her past and present general conduct and having exercised his discretion to refuse the grant of a visa (T2 p10).  On 1 September 2004, Mr Lo lodged an application for a review of this decision by the tribunal.

19. At the hearing, the applicant appeared in person and the respondent was represented by Gretchen Bennett, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), including supplementary documents, taken into evidence collectively as Exhibit R1, together with the evidence tendered by the parties at the hearing. Mr Lo gave oral evidence in person and Ms Chen gave oral evidence by telephone from China.

Relevant Law and Policy

20. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. 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 paragraph (c), as follows:

For the purposes of this section, a person does not pass the character test if:

…                  

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

…

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

the person is not of good character; …

21. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

22. 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.

Issue

23. The issue for the Tribunal to determine in this case is, therefore, whether Ms Chen is not of good character having regard to her past and present general conduct so as to be precluded from the grant of subclass 309 spouse (provisional) visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence

24.     Ms Chen gave evidence by telephone from China.  A Cantonese interpreter was sworn in to assist with the giving of her evidence.  Mr Lo gave oral evidence in person with the assistance of a Mandarin interpreter.

25. The evidence in relation to character was directed to the visa applicant’s past and present general conduct within s 501(6)(c)(ii) of the Migration Act. At the hearing Ms Chen admitted the respondent’s contention that she had entered Australia on 18 September 1997 on a forged Taiwanese passport in the false name of Hzin Hui Chen with a false subclass 976 visitor visa expressed to be valid until 18 December 1997. 

26.     In her letter to the Consulate General of 7 April 2004 in response to a notice of intention to refuse a spouse visa, Ms Chen related how she had been introduced to a Mr Fong, who was a tour guide in Fuzhou with a company called United Travel Service Private Limited, who told her that he could get her a tourist visa to visit Australia (T p274).  Fong was apparently a “snakehead”, or people smuggler (T p294).  He had said that in order to obtain an Australian tourist visa, it was necessary to proceed to Christmas Island by way of Cambodia, Vietnam and Thailand.  She said that she had given Fong her Chinese passport for the purpose of obtaining the Australian tourist visa (T p294).  She did not say that it had been returned to her, but if she did give it to him then it must have been returned, as she would have needed it in order to leave China.

27.     She further stated that in September 1997, when she arrived in Vietnam, Fong gave her a false Taiwanese passport and told her that if she refused to accept it, she would still have to pay for it, otherwise her family in China could experience problems.  She thus claimed to have been deceived and forced into accepting and using the Taiwanese passport (T pp274-275). 

28.     At the hearing she said that the plan was to go first to Vietnam, then Thailand and then Australia.  She quickly corrected herself and said the intention was that she would then apply (in Thailand) for an Australian visa.  She said that she was given the false Taiwanese passport when she was in Thailand, not in Vietnam as she had stated to the department in her letter of 7 April 2004 (T p274), and that her Chinese passport had been returned to her after she arrived in Australia.  In cross-examination she admitted that she had not approached an Australian consulate in China or undertaken any other research about obtaining a visa to live in Australia, saying that she did not know how to arrange to come to Australia and thought that she could pay others to do so.  Fong had required her to pay 160,000 RMB (about $25,000 at present rates) for the whole trip, but she claimed that her suspicions were not aroused by being asked for such an abnormally large sum of money.  She had simply thought it was a reasonable sum to pay.  That assertion is not credible.  It should be noted in this context that numbers of earlier cases in this tribunal have noted that Fujian province is a notorious marketplace for the sale of false passports and other documents (see for example, Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065; Re Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107; Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828).

29.     In cross-examination Ms Chen also admitted that her protection visa application lodged on 18 December 1997 claiming a real fear of persecution by the Chinese authorities was based on false claims and that she knew she was not a refugee.  She sought to qualify that by saying that she did not know at the time what the definition of a refugee was, that she did not understand how the system worked and that although she had signed the protection visa application she had only done what her lawyer had told her to do.  It is nevertheless clear that she knew she had made a false application.  

30.     In connection with her protection visa application Ms Chen had received a bridging visa C with a condition prohibiting her from working (condition 8101).  On 14 April 1998 the department notified the visa applicant that her protection visa application had been rejected by the Minister’s delegate (T15 p82).  On 17 March 1999 the Refugee Review Tribunal affirmed that decision (T20 p101).  A little over a week later, on 26 March 1999, she was located working at a massage parlour (meaning, at least in this instance, a brothel) called the Harmony Health Centre.  She admitted that she was working there but was evasive about revealing her identity (Sup T2 p3).  At her interview on 29 March, she admitted working at the Harmony Health Centre for two to three months (Sup T3 p20), and at a later interview on 19 May 1999 again admitted working in Australia (Sup T9 p54).  She retracted those admissions at the hearing, however, claiming repeatedly that she had been merely “helping”, not working, for a couple of days a week in return for payment to help her with the rent.  She denied having admitted that she had worked part-time, saying that she did not realise what she was being asked and she had forgotten what she had told the department because it was so long ago.  Again, despite the prevarication, the breach of the work condition is manifest. 

31.     A third matter was the breach of the conditions of the bridging visa E on which she had been released from immigration detention on 13 April 1999.  That bridging visa was subject to eight conditions ranging from informing the department of a change of address to leaving Australia before 20 April 1999 (Sup T6 pp35-36).  As the Immigration Review Tribunal noted, “the Applicant failed to abide by the majority of these conditions” (Sup T11 p65) and, specifically, did not leave Australia by the designated date.  She had produced an air ticket to the department as required, but had in fact sold it to another Chinese person (Sup T p56).  At the hearing she sought to explain her overstay by saying that on 20 April she had been told by her lawyer that she could stay in Australia.  It was put to her that the conditions attached to the bridging visa E were explained to her at an interview, and that an interpreter had been present at the time for that purpose.  She agreed that there had been an interpreter but said she could not recall whether the conditions were explained or not because she was thinking about her release.  When again asked if she knew the conditions of her release, she replied that she did not understand the conditions.  At least as regards the overstay, that is inconsistent with her admitted conduct in obtaining an air ticket and producing it for inspection by the department as required. 

32.     In addition to the evidence of using a false passport and visa, making a false protection visa application, and breaching the conditions of two bridging visas, there was other relevant evidence of conduct.  It showed that she had not come to Australia in the first place as a tourist but with the intention of living and working here (Sup T2 pp5, 6).  When asked at the hearing whether she intended to live in Australia she replied, “Yes, that was the plan”.  In her spouse visa application she did not declare that she had previously been refused a spouse visa in relation to a different sponsor, Mr Robert Pike (T pp136, 294). 

33.     She had been evasive in her replies to departmental officers when detected at the massage parlour and at her interview on 29 March 1999.  In answer to six questions she said she would ask her solicitor to reply, or referred the department to her solicitor for an answer (Sup T pp17-22).  She then refused to sign the record of the interview even though she had received the assistance of an interpreter (Sup T pp23-24). 

34.     She was also evasive at the hearing, notably as to her protection visa application, working unlawfully and the overstay.  At an interview on 17 May 1999, she said that she did not know her current address or the address of her then boyfriend (Robert Pike) who she said would be sponsoring her to return to Australia (Sup T  pp61-62).  At the interview on 19 May, she initially said that her boyfriend’s name was Michael and that she did not know his surname or where he lived.  Later in the same interview she claimed that her boyfriend’s name was Robert, not Michael (Sup T p60).  When asked if she had married Mr Pike in order to stay in Australia, she replied, “I never thought of that”.

35.     Ms Chen said at the hearing that she could not recall the reasons why her spouse visa application sponsored by Mr Pike had been rejected in September 2000.  As that application and related documents were not available to the tribunal, I draw no inference adverse to Ms Chen from the fact of refusal, except as regards her failure to declare the refusal in her second spouse visa application.

36.     Her reluctance to attend the department’s office in order to discuss the conditions for the grant of a possible bridging visa E (Sup T pp61-62) rather suggested an attempt to evade apprehension.  At the hearing Ms Chen disavowed any reluctance and said that she did in due course go to the department’s office so that she would not be apprehended.  But it had been her own agent who had described her attitude as one of reluctance (Sup T10 p61). 

37.     There is no evidence of countervailing factors or of recent good conduct.  Indeed, she appears to lack any sense of wrongdoing about her substantial record of immigration violations, let alone expressing any regret or contrition.  In re-examination she said she could not understand why the Minister’s representative was asking questions about problems that had occurred years ago.  “They shouldn’t discriminate against me because of things long ago”, she said.  The Immigration Review Tribunal’s reasons for its decision affirming the refusal of a bridging visa E on 31 May 1999 concludes with a summary of Mr Chen’s conduct which remains true today:

Clearly the Applicant’s migration history indicates a desire to remain in Australia and a demonstrated ability to say anything that might achieve her desires [sic] ends – release from detention and permanency in Australia. 

The Applicant was not credible in her undertakings to abide by any conditions imposed.  She arrived using illegal means, with the aim of finding work, not seeing Australia, overstayed her tourist visa, worked without permission, failed to depart by the agreed date, …. was accompanied to the departmental interview by the brothel manageress and gives every indication [to] this Tribunal that she would agree to anything as long as she was released (Sup T11 p66).

38.     As regards the exercise of the discretion, Direction No 21 requires the tribunal to consider the protection of the Australian community, including the seriousness and nature of the conduct and the risk of recidivism.  The evidence set out above relating to the character test applies equally to the community protection consideration.  The remainder of the evidence dealt mainly with the other considerations referred to in paragraph 2.17 of Direction 21.  The principal factor here is the marriage between Ms Chen and Mr Lo. 

39.     Mr Lo was introduced to Ms Chen on 16 April 1999 at a Chinese restaurant in Ashfield, New South Wales.  A month later, Ms Chen was detained by departmental officers after being found working unlawfully at the Harmony Health Centre.  While in detention, on 2 June 1999, Ms Chen married an Australian citizen, Robert Joshua Pike, who was 48 years her senior.  It will be recalled that at her interview on 19 May 1999, about two weeks before the wedding, she did not know Mr Pike’s surname or address and gave his first name as Michael several times before correcting herself and referring to him as Robert (Sup T p60).  After she had returned to China, Mr Pike visited her there and applied for a spouse visa.  The couple was interviewed at the Shanghai consulate in the latter part of 1999 after they had married.  The spouse visa was refused, according to Ms Chen’s evidence, in September 2000.  The marriage shortly ended in divorce, with a decree nisi obtained in the Federal Magistrate’s Court on 10 September 2001 that became absolute on 11 October 2001.  

40.     Five months before the divorce, Mr Lo telephoned Ms Chen in China and their relationship commenced from that time.  A week later, Mr Lo sent Ms Chen US$1,000 to enable her to join a tour group to visit Korea.  She in turn invited him to visit her in Fuzhou, China.  He did so, arriving on his first visit on 9 August 2001 (T p183).  They were married in Fuzhou on 8 February 2002. 

41.     Since the marriage the couple have spent time together in China and at Penang, Malaysia.  Although they have had a total of only eleven weeks together, Mr Lo maintains that the relationship is a lasting one and that they keep in touch by telephone every night.  He concedes that his previous wives used him to obtain permanent residence, but maintains that this marriage is different because he has known Ms Chen for three years and is familiar with her character and family background. 

42.     Ms Chen lodged her spouse visa application based on her marriage to Mr Lo on 10 September 2002.  In that application Ms Chen did not mention the refusal of the earlier spouse visa application sponsored by Mr Pike, and Mr Lo stated that he had previously nominated a spouse on only one occasion (T p163).  In fact, Mr Lo had applied for spouse visas for two previous wives, thereby obtaining permanent residence for them.  They now live in Australia also.  As this was Mr Lo’s third spouse visa application, the Minister’s delegate refused the visa initially on the basis of regulation 1.20J which provides that a third or later spouse visa can be approved if there are “compelling circumstances”, and the Minister’s delegate did not think that there were.  The Migration Review Tribunal set aside that decision on 7 January 2004, principally on the ground of Mr Lo’s medical condition, which meant that he would benefit from having the assistance of Ms Chen.

43.     At the hearing it emerged for the first time that Mr Lo had in fact been married four times, not three.  His first marriage was in 1972 in Singapore to Mit Kiew Hong.  They lived together in Australia for six months before Ms Hong left him and divorce ensued in 1986.  There is one child of that marriage, Justin Cah Weng Lo, now aged 32, who lives in Australia, as does his mother. 

44.     Mr Lo stresses that his medical condition makes it necessary for him to have his wife with him in Australia.  He has sustained two heart attacks, one in 1995 and one in 2000.  The first required by-pass surgery and the second involved the clearing of an artery and the insertion of a stent.  He suffers from reduced arterial blood flow and in October 2001 was injured in a forklift accident, which left him with shoulder and leg pain for which he is receiving physiotherapy and acupuncture.  He also suffers from asthma and haemorrhoids.  He submitted medical reports from the Department of Nuclear Medicine, Concord Repatriation Hospital (signed by Dr H Van Der Wall), Dr David Tang and his general practitioner, Dr NC Patel (Exhibit A1). 

45.     To the respondent’s suggestion that he could relocate to China to be with his wife, he expressed strong disagreement on the ground that he has strong ties to Australia and while he has relations in Canada and Malaysia, he has none in China.  He did not believe that he could receive the same standard of medical treatment in China and pointed out that it would be difficult for him to travel regularly to China to be with his wife because of his heart complaint.  When it was suggested to him during cross-examination that he might obtain the services of a nurse, he did not directly reply, but simply said that he was worried about his health every day and would suffer hardship if his wife could not join him.  He said he has nobody to help him and seldom sees his son in Sydney.  He is in receipt of Centrelink age pension and is happy in Australia.  He said he knew nothing of Ms Chen’s immigration problems until he was informed that she was detained at Villawood.  He claimed he did not recall when he had first learned about her coming to Australia on a false passport, but said it was some time after they were married, when departmental officers in Shanghai located her migration history. 

46.     Ms Chen also said that she had told Mr Lo about her migration problems before she left Australia, but at that stage was afraid to tell him about the false passport and consequently told him later, in May or June 2001.  She said twice that she thought it was only fair to tell him, and specifically stated that she had told Mr Lo about her previous spouse visa problems with Mr Pike before the marriage to Mr Lo.

47.     Ms Chen denied that she married Mr Lo in order to obtain a visa to return to Australia.  When asked whether she knew before she married him that she might not be able to obtain a spouse visa because of her prior migration problems, she did not directly reply, but answered that she only wanted to come to Australia because of him. 

Application of the Law and Findings of Fact

48. As stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Ms Chen 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) 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).

49. 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 Ms Chen 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.

50. 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), (b) and (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, whether the non-citizen has in connection with the application for a grant of a visa provided a bogus document or made false or misleading statements and whether the non-citizen has made a false or misleading declaration on an approved form about the non-citizens character.

51.     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.

52. Before making a decision on whether Ms Chen passes the character test, it is appropriate to set out my findings of fact on that issue. I find that Ms Chen has committed multiple offences against migration law over a period of years, including entering Australia on a false passport and false visa, making false or misleading statements in connection with her protection visa application and spouse visa application and other dealings with the department, working in Australia without permission and remaining in Australia despite the fact that her visa had expired. These offences were committed in pursuance of a goal of remaining permanently in Australia and it is apparent that she will say anything to achieve that end. Several of the offences carry penalties under ss 234, 235 and 236 of the Migration Act of up to ten years imprisonment and a $10,000 fine. There are no countervailing factors and no evidence of rehabilitation. Indeed, she considers that the Commonwealth has no right to take these matters into account when considering whether or not to grant a spouse visa. In my view her past and present general conduct show that she is not a person of good character.

53. I must therefore decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Ms Chen. In exercising this discretion, the tribunal must have 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.

54.     Paragraph 2.3 sets out the primary considerations:

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

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

(b)       the expectations of the Australian community; and

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

Paragraph 2.4 explains:

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

55. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “presenting false or forged documents or 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.

56.     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 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”. 

Protection of the Australian Community

57. The first factor to be considered 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 the tribunal, states in paragraph 2.6(c) that offences against the Act, including “presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. I find the visa applicant’s repeated breaches outlined above, are very serious. The visa applicant’s multiple violations of migration law, several of which carry heavy penalties under the Act, are very serious. There are no mitigating factors and no evidence of rehabilitation. The pattern of deceptive conduct is continuing and manifested itself at the hearing in several attempts to mislead the tribunal. The visa applicant does not recognise the wrongness of her behaviour and denies that it has any relevance to her suitability for a visa. In the circumstances there is a significant risk that the conduct, or similar conduct in relation to governmental or private bodies could be repeated: see ReBeale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714 at paragraph 33, per Wright D P.

58.     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.  The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.  In this case, I conclude that refusal of a spouse visa may dissuade others from committing similar acts and from engaging the services of people who practice immigration fraud: see Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 at paragraph 47, per Purvis DP. This is particularly so as there is a regular incidence of fraudulent applications and attempted fraud in China (see for example, Re Barnett and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1065 at paragraphs 112 and 127; Re Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 828 at paragraph 50; Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038 at paragraph 70).

Expectations of the Australian Community

59.     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.

60.     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.  A particularly serious view would be likely to be taken where a false passport is used: Re Qiu and Minister for Immigration andMulticultural and Indigenous Affairs [2004] AATA 1308 at paragraph 149 per Block DP. Community expectations weigh against the grant of a visa in this case, where the breaches of the law have been multiple and serious, and there is a real risk of recidivism.

The Best Interests of the Child

61.     The third primary consideration, the best interests of any child under the age of 18 years, is not relevant in this matter.

Other Considerations

62.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.  A refusal to grant a visa to Ms Chen would not disrupt Ms Chen’s family because they all, except for the applicant, live in China.  Mr Lo’s son, Justin, lives in Sydney, as do his sister, Lai Heng Loh, and brother, Wai Kit Loh (T p142).  They would not be adversely affected if the visa were refused.

63.     The main circumstance relevant to this consideration is the health of Mr Lo, who is aged 65.  Mr Lo suffers from ischaemic heart disease.  He suffered a heart attack on 10 December 1995, after which he underwent coronary bypass surgery.  On 19 December 2002, he was admitted to hospital with unstable angina requiring angioplasty and stenting (T36 p215).  He was also injured in a forklift accident in October 2001.  In support of his health concerns, Mr Lo provided medical reports from Dr NC Patel dated 13 January 2005 (Exhibit A), Dr D Tang dated 14 December 2004 (Exhibit A) and Dr H Van Der Wall of the Department of Nuclear Medicine, Concord Repatriation Hospital dated 11 January 2005 (Exhibit A).  At the hearing he stressed that he would not move to China, where he has no ties, his family, apart from those in Australia, being located in Canada and Malaysia. Mr Lo himself was born in Malaysia and has never lived in China.  He said that he could not practicably visit Ms Chen in China because of his medical condition, particularly his heart ailment.  Unless she were granted a visa, he would have nobody to help him to cope with his health problems.  He does, however, have a son, brother and sister in Sydney.  He declined to be drawn on the possibility of obtaining the services of a nurse. 

64.     Paragraph 2.17(b) directs the tribunal’s attention to the question whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.  Mr Lo said that he became aware of Ms Chen’s migration problems when she was detained in Villawood, before the first occasion on which he made contact with her by telephone in China.  He maintained, however, that he knew nothing of her false Taiwanese passport until after they were married (the wedding being on 8 February 2002). 

65.     On the other hand, in her oral evidence at the hearing Ms Chen said that she had told Mr Lo about the false passport in May or June 2001, adding at two points in her cross-examination that she thought it was only fair to tell him about it.  It is thus more likely that Mr Lo was aware that Ms Chen had entered Australia on a false passport and visa well before their marriage, in fact shortly after he first made contact with her in April 2001. 

66.     Thus, while Mr Lo could suffer some hardship if a visa is refused to his wife, he may have other ways of obtaining the help he needs, and in any case was fully aware of his future wife’s legal position at a very early stage in their relationship.  I conclude that the other considerations in this case do not outweigh the primary considerations of community protection and expectations and that the exercise of the discretion in favour of granting a visa is not warranted.

67.     The decision under review should be affirmed.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

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

Date of Hearing  1 February 2005
Date of Decision  11 February 2005
Representative for the Applicant               Self-represented
Representative for the Respondent          Ms G Bennett, Clayton Utz, solicitors