Lu and Minister for Immigration and Multicultural Affairs - [2001] AATA 402

DECISION AND REASONS FOR DECISION [2001] AATA 402

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/73

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JUN LU
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date11 May 2001
PlaceAdelaide

Decision The decision of the Tribunal is that the decision under review is affirmed.

..................(Signed)........................
DEPUTY PRESIDENT B.H. BURNS
CATCHWORDS
IMMIGRATION & CITIZENSHIP - refusal of visa on character grounds - sham marriage - importance of general deterrence - decision affirmed.
Migration Act 1958 s500(6L) ss501(1)(6)and(7)
"Visa Refusal and Cancellation under s501 of the Migration Act 1958" Minister's Direction No. 17

REASONS FOR DECISION

11 May 2001 Deputy President B.H. Burns

This is an application by Mr Jun Lu, also known as Mr Kent Lee ("the applicant") for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") dated 20 February 2001 which refused the applicant's application for a visa under resolution of status made on 24 March 1998, pursuant to s.501(1) of the Migration Act 1958 ("the Act"). The respondent exercised his discretion to refuse the grant of the said visa after being satisfied that the applicant did not pass the character test as defined in s.501(6)(a) of the Act due to his substantial criminal record as defined in section 501(7)(c) of the Act.
The Tribunal received into evidence the documents lodged pursuant to s.501G of the Act (G1-11), together with 15 exhibits, 5 lodged by the applicant (Exhibits A1-A5) and 10 lodged by the respondent (Exhibits R1-R8). In addition, the Tribunal heard evidence from the applicant and Mr Carmine Gioiasa, Ms Sandra Lee Colhoun and Mr Ong Toon Theen. The applicant was represented by Mr Rau and the respondent was represented by Mr Leerdam, both of counsel.
Amendments to the Act came into effect on 1 June 1999 that introduced expedited procedures for the review of certain decisions under s.501 of the Act. These procedures apply to the present matter and are set out in s.500 of the Act. The most significant of the new procedures, set out in s.500(6L) of the Act, is that the Tribunal must finalise the review of this matter within 84 days from the day on which the applicant was notified of the respondent's decision. If the Tribunal fails to deliver a decision within that time, the decision is deemed to be affirmed, and the applicant is liable to be removed from the country. As the letter setting out the decision to refuse the applicant's visa was hand-delivered to the applicant on 20 February 2001 (see registry file, folio 1) then the date on which the 84 days expires in this matter is 15 May 2001.
background
By way of background, the Tribunal makes the following findings of fact which are not in dispute.
The applicant was born on 25 November 1962 in Shanghai, China. He first entered Australia on 27 December 1989 as a visitor on a single entry Sub Class UA-H33 Visa valid for stay until 2 July 1990 (Exhibit R1, page 1).
On 16 July 1990 the applicant was granted a temporary entry permit for stay until 21 July 1991 and the applicant was subsequently granted a further temporary entry permits for stay until 22 July 1993 (Exhibit R1, page 1).
On 24 August 1992, the applicant was refused refugee status (Exhibit R9).
On 20 July 1993 the applicant lodged an application to remain permanently in Australia on the grounds of his marriage on 3 July 1993 to Ms Louise Anne Papps (Exhibit R1, page 1).
On 22 December 1993 the applicant was granted a Transitional (Temporary) Visa Sub-Class 829 valid until 13 September 1994 (Exhibit R1, page1). On 27 June 1994 the applicant lodged an application for a Class 829 Processing (Residents) Entry Permit and on 13 September 1994 the applicant was granted a Spouse Temporary Resident UA-820 visa (Exhibit R1, page 2).
On 28 August 1995 the applicant was granted a Resident Return Visa BF-154 valid until 30 June 1998 (Exhibit R1, page 2).
On 4 March 1998 in the Adelaide Magistrates Court, the applicant was found guilty of the following offences (G1/1-11):
(a) taking part in a marriage to obtain a Visa contrary to Section 83g(1) of the Migration Act 1958;
(b) making a false statement in a statutory declaration contrary to Section 11 of the Statutory Declaration Act 1959 (two counts).
In her judgment delivered on 4 March 1998, the learned special magistrate made the following remarks (G1/11):
"…
In my view the whole of the evidence is only consistent with the fact that the defendant, having been refused refugee status in 1992 (Exhibit P18) and desparate [sic] to remain in Australia, paid for the services of Starczowski and Papps to provide him with evidence of a marriage such as did ultimately result in him remaining in Australia.
I find at all relevant times the defendant well knew the marriage was a sham, a fraud, a pretence and he never intended to live permanently with Ms papps in a genuine and continuing marital relationship. To achieve this aim, inter alia, he made false statements in Statutory Declarations on 20 July, 1993 and 24 July, 1995.
I am satisfied beyond all doubt that the defendant is guilty as charged."
On 20 March 1998, in relation to the offence referred to in 11(a) above, the applicant was convicted and imprisoned for 12 months but released forthwith after entering into a bond in the sum of $200 to be of good behaviour for two years. A reparation order in the amount of $1,433.53 was made pursuant to Section 21B of the Crimes Act 1914. In relation to the offences referred to in 11(b) above, the applicant was convicted and imprisoned for two months but released forthwith after entering into a bond in the sum of $1,000 to be of good behaviour for two years (G3/17-18).
On 20 March 1998 the applicant completed a form entitled "Application for Resolution of status (temporary) Subclass 850 and Resolution of status Subclass 851" (G5/29-35). The form was lodged on 24 March 1998 (G7/51).
On 30 March 1998, the applicant was served with a Notice of Intention to cancel his visa under section 101 of the Act (G2/12-14).
On 30 June 1998 the respondent notified the applicant of its decision to cancel the Spouse Temporary Residence Visa UA-820 granted to the applicant on 13 September 1994 and the Resident Return Visa BF-154 granted to the applicant on 28 August 1995 (G19-27).
On 8 July 1998 and subsequently on 23 July, 29 July and 21 August 1998 the applicant was granted Bridging E Visas (Exhibit R1/ page 2).
On 23 October 1998, Mr Piotr Starczowski was convicted for his role in arranging the sham marriage between the applicant and Ms Papps. He was sentenced to a term of imprisonment of two years (Exhibit R10).
On 24 May 1999 Senior Member Radin of the Immigration Review Tribunal delivered a decision in which the Tribunal affirmed the decision of the respondent dated 30 June 1998. The findings made by the Tribunal included the following (G6/49-50):
"…
The Tribunal finds the applicant's testimony to be less than plausible. Jun Lu's characterisation of a 'genuine marriage in waiting' is unlikely in the extreme, notwithstanding his so-called reliance upon 'traditional Chinese values' in this regard. The Tribunal finds that it is unable to rely on such testimony and prefers to accept that given by Ms Papps, who stated openly that she had entered a 'sham marriage' for the purposes of monetary reward. Indeed, this was a consistent pattern of behaviour on her behalf, given her guilty plea in the Magistrates Court.
On this basis, the Tribunal must also find that Mr Jun Lu knowingly entered a sham marriage with Louise Papps, an Australian citizen, and his nominator. In the Tribunal's view, notwithstanding and indeed because of, Mr Lu's 'traditional values', it is most unlikely that, for example, he would have accepted Ms Papps' open adultery if he believed that the marriage was really a genuine one. The Tribunal does not accept his explanation that this was perhaps 'how people behaved in Australia'. The information provided to the Department therefore, in pursuance of an application for a spouse visa, was deliberately deceitful. In the view of the Tribunal therefore, the Department was justified in using its cancellation power under section 109 of the Act to cancel the applicant's visa.
…"
On 27 September 1999 the applicant was served with a Notice of Intent to refuse under section 501 of the Act (G7/51-68) and on 3 November 1999 the applicant provided a response through his solicitor (G8/69-90).
On 20 February 2001 the respondent refused the applicant's application, made on 24 March 1998, for a visa under resolution of status on the particular ground that the applicant did not pass the character test as defined in section 501(6)(a) of the Act due to his substantial criminal record as defined at section 501(7)(c) of the Act, and exercised the discretion in s.501(1) by way of refusing the visa sought by the applicant (see registry file, folio 1).
On 18 January 2001, in response to a second opportunity to comment, the Legal Services Commission provided the Department with a letter on behalf of the applicant (G11/110-166).
On 27 February 2001 the applicant applied to this Tribunal for a review of the decision of the delegate of the respondent.
issues
The issues in this case are:
· Whether or not the applicant passes the character test, for the purposes of s.501(1) of the Act.
· If the applicant does not pass the character test, whether the discretion in section 501 of the Act should be exercised in favour or not of refusing the grant of the subject visa to the applicant.

the evidence
the applicant

The applicant told the Tribunal that he was born on 25 November 1962 in Shanghai, China. He was an only child. His mother passed away in March 1999 and his father has remarried and lives in China.
The applicant testified that he entered Australia with a student visa on 27 December 1989 to undertake English language studies. His native tongue is a Shanghai dialect. He already had an engineering degree from Shanghai and came to Australia to improve his qualifications. His Shanghai qualification was assessed by the University of South Australia to be equivalent to a Bachelor of Technology in Australia. In Shanghai he had been undertaking design work for a company that manufactured glass for lights. The applicant told the Tribunal that once arriving in Australia, he studied English for 18 months, Japanese for 2 years at TAFE and had also completed an Associate Diploma in Small Business Management.
The applicant told the Tribunal that whilst living in Sydney in August 1991, he applied to remain permanently in Australia as a refugee. He made this application on the basis that he feared persecution by the Chinese authorities because of his association with a friend in Shanghai who worked in the Public Security Bureau and was accused of issuing Chinese passports to student leaders involved in the democracy movement. The applicant was concerned because he had introduced a person to this friend. The applicant testified that he did not receive any assistance from a Migration Agent in relation to this application.
The applicant gave evidence that it was only after eight months or so that he was called in for an interview. The applicant testified that he was told that the application would not be accepted on the information provided and it was suggested to him that more information and detail was required within 28 days. The applicant provided the interviewing officer with additional information as requested but subsequently withdrew his refugee application because he had already entered the marriage with Ms Papps and could not have two separate applications. The applicant testified during cross-examination that he decided not to continue with the refugee application because it had already been refused and he thought that most likely it would not be successful.
The applicant then outlined to the Tribunal the circumstances leading up to his conviction in the Adelaide Magistrates Court for offences relating to his decision to enter into the "sham marriage". He gave evidence that at the time of his refugee application, in early 1993, he was sharing a flat in Botany with two other Chinese Students. The applicant said that he kept looking at the local Chinese newspapers containing ads offering to help people to migrate. Many ads mentioned obtaining permanent residence in Australia by marrying an Australian citizen. The applicant said that he telephoned a number of these agencies advertising in the papers and found that they would introduce the applicant to an Australian woman and assist in arranging a marriage. During cross-examination, the applicant testified that he did not discuss the possibility of entering a sham marriage with his fellow Chinese students. He was too ashamed to tell his family in China what he was doing and did not talk to anyone about entering into a sham marriage.
The applicant said that at this time he was introduced by a shopkeeper friend to a girl named Jenny who gave him the address of Mr Starczowski, a person whom the applicant thought was an agent who helped people to migrate. The applicant testified that he wrote a letter to Mr Starczowski and the response he received was on letterhead and appeared to be business-like. The letter informed the applicant that he could apply to remain in Australia permanently by marrying an Australian woman and that the price for arranging this would be $20,000. The applicant gave evidence that at the time, he did not believe that it was a legitimate process, but went ahead and did it anyway. He said: "I think I was just desperate, try to stay here. That's the only reason." (Transcript, p 12).
The applicant gave evidence that he travelled to Adelaide in April 1993 to be introduced to Ms Louise Papps through Mr Starczowski. The applicant testified that he had a chat with Ms Papps but had not paid any money at that stage and he was still working in a job in Sydney that he had had since one month after his arrival in Australia. The applicant told the Tribunal that he paid Mr Starczowski $3,000 by cheque. Subsequently, he paid the remaining $17,000 from his savings and from work entitlements following his retrenchment.
The applicant told the Tribunal that the wedding between him and Ms Papps was held on 2 July 1993 at a Registry Office and after the wedding, he moved into a unit with Ms Papps at Camden Park. The applicant gave evidence that they slept in separate rooms. The applicant and Ms Papps stayed for one or two months at the unit in Camden Park and then moved to a place at Welland.
The applicant gave evidence that in June 1994, Mr Starczowski came to visit and said that his contract with Ms Papps was finished and the applicant would need to pay him $400 per month until the migration papers had gone through. The applicant testified that he was greatly shocked by this and said that his situation was made worse by the fact that he had paid over all of his savings to Mr Starczowski and had nothing left. Additionally, the applicant felt regretful that as a result of the general "amnesty" announced in November 1993 (resolution of status visa for Chinese persons then in Australia) he could have obtained permanent residence by legitimate means.
The applicant testified that within a week or two of Mr Starczowski asking him for more money, the applicant heard that his mother and grandmother were gravely ill. The applicant said that he really wanted to go and see them, as by that stage, he had been in Australia for about five years without seeing them. The applicant was very concerned about returning to China, and upon making enquiries, discovered a rule that if you stayed over a month, then you would have to register in the local police office. The applicant gave evidence that he returned to China for a period of three weeks in October 1994, staying at the home of his cousin. Before going to China, he made four payments of $400 to Mr Starczowski, money he obtained from working overtime and saving all the money he could.
The applicant gave evidence that upon his return from China, Mr Starczowski told him that Ms Papps was gone and the house was cleaned out. The applicant asked Mr Starczowski to take him to Ms Papps' sister's house, where he got in contact with Ms Papps. Ms Papps agreed that she would stay with the applicant if he found some accommodation and paid all of the bills necessary for the shift of her furniture. The applicant then moved to Jefcott Street, North Adelaide with Ms Papps, but she again left after three to four months, taking her furniture with her. The applicant told the Tribunal that he remained for another two years by himself at the North Adelaide residence. The applicant subsequently lived at another place in North Adelaide, then in Norwood at a place with shared facilities and then at Toorak Gardens, where he was taken into custody.
The applicant testified that during his time in Adelaide, he found a job at Clarks Shoes at Richmond working in the warehouse, where he attended to the making up and dispatch of orders to various purchasers. He told the Tribunal that in a better than average year, he earned approximately $31,000 - $33,000 per annum. He worked at Clarks Shoes for six and one half years until February 2000, when the company closed down and the applicant was made redundant. The applicant then registered with an employment agency before gaining a position at Monroe Australia for six months and then gaining a position at SA Brewery, where he worked until February 2001. The applicant testified that he has been unemployed for a total of five months since his arrival from China.
The applicant gave evidence that his work in Australia has not involved utilising his engineering qualifications but he would like very much to be able to use them in Australia. If allowed to remain in Australia, the applicant testified that he intends to have his qualifications upgraded to the level accepted in Australia. He is aware of a six-month bridging course at the University of South Australia that he could undertake, and if upon completion, it was good enough for him to get a job, he would do so. Otherwise, he is willing to study for another 1 and 1/2 years in order to get his Masters degree, which would be more likely to secure him a professional job. The applicant testified that he has not been able to afford to commence this study yet but he would pursue steps to achieve these goals if allowed to stay in Australia.
In terms of lifestyle and interests, the applicant told the Tribunal that he was a very quiet person who liked reading and visited Burnside library regularly. He also liked to go out on weekends for a meal with the friends that he had met through his work and study. He told the Tribunal that he was interested in Chinese history and political science, as he was unable to get any accurate information on these topics whilst in China.
In relation to his attitude and understanding of the offences for which he was convicted, the applicant told the Tribunal that he decided not to give evidence at the Magistrates Court after receiving legal advice. He told the Tribunal that he did knowingly enter into a sham marriage and accepted responsibility for his actions. The applicant testified that he was extremely sorry that he broke the laws of the country that has treated him so well and he has let down all of the people that he has met in Australia through work and study. The applicant testified that his actions have cost him a lot financially, including lawyer's fees. He has been unable to live a normal life since his conviction and has been in custody since February 2001.

The applicant told the Tribunal that it had taken him a while to face the truth of his actions and he had experienced hardship. The applicant testified that he had learned his lesson and understood that he now had to be open and tell what he had done wrong. The applicant testified that he needed to be given the chance to prove that he would be a good person and a productive one. He assured the Tribunal that he would never be involved in activities of this type again.
The applicant agreed during cross-examination that he continued to make false statements for quite a long time after his marriage to Ms Papps – the second of the documents upon which the applicant was convicted was dated 24 July 1995 (Exhibit R5). The applicant testified that he got Ms Papps to sign this second false statement (see Exhibit R8) after they were no longer living together by going to her work at the hospital and paying her to sign. The applicant agreed during cross-examination that DIMA granted him permanent residence about one month after this later false statement.
The applicant gave evidence during cross-examination that a police officer came to his house just before Christmas in 1996. During cross-examination, the applicant was shown a statement signed by him dated 12 February 1997(G8/74-83). The applicant agreed that the statement was false in that he claimed in the statement that he did not know that the marriage was not genuine. The applicant testified that he went to see his solicitor the day after the police came to his house and his solicitor subsequently drafted the statement and provided it to the Australian Federal Police. When it was put to the applicant that this statement was subsequently attached to a letter dated In relation to the letter from his solicitor to DIMA dated 16 March 1998 (Exhibit R4), the applicant admitted that the false statement was resubmitted to the Dept. The applicant testified that he had just handed his documents to his solicitors who submitted them on his behalf.
The applicant agreed that a further letter dated 3 November 1999 from his solicitors, responding on his behalf to the refusal by DIMA to allow his visa (G8/69) also included the false statement but the applicant told the Tribunal that he did not know that the false statement was included until he got a copy of the letter. The applicant said that he did not read the statement – the material upset him and reminded him of what he had done wrong. The applicant admitted that it was his responsibility to check what his solicitor was sending off. During cross-examination, the applicant also admitted that, in a letter from him to the Department (G8/73), attached to the letter from his solicitors, he did not "come clean" to the Department and tell the Department that he knew from the beginning that the marriage was a sham.
The applicant was referred during cross-examination to a further letter to DIMA from Legal Services Commission (LSC) dated 18 January 2001 (G11/110) where the letter stated that the applicant had confirmed the comments already made by his previous solicitor. The applicant testified that he went to LSC, admitted his involvement in the sham marriage to LSC and Ms Gardiner prepared all the documentation for him.
The applicant agreed that the submissions that he had made to the Immigration Review Tribunal ("IRT") on 26 March 1999 were different to the submissions made to this Tribunal. The applicant agreed that at the IRT hearing, he had given sworn evidence which was false in that he attempted to convey to the IRT that in the beginning he did not know that the marriage was a sham. He had testified that after the wedding, he was trying to make the marriage work and he wanted to make Ms Papps happy. The applicant told the Tribunal that at the time that he gave evidence to the IRT, he could not face the truth and it took him a while to realise that he had to tell the truth and own up to the mistake that he made. He explained that at the IRT hearing, he had tried to gain some sympathy for his situation.
When asked during cross-examination at what point he decided to give true evidence, the applicant testified that it was after the IRT hearing on 24 May 1999 (G6/36). The applicant admitted that he should have corrected his solicitor and the LSC in the assumptions they had made. The applicant testified that he did tell them the truth but he did not draft the documents.
When asked during cross-examination at what stage did he make up his mind to say to DIMA that he knew what he had done was wrong, the applicant gave evidence that right after the police officer came to see him just before Christmas in 1996, he had decided to come clean but then he sought legal advice and was told that if he pleaded guilty, his visa would be cancelled and he would have no chance of getting it back. At the time of his subsequent letters via his solicitors to DIMA, the applicant again testified that he handed the department's responses to his solicitors and his solicitors prepared the paperwork. The applicant agreed that between 1996 and 1999, he did not tell the Department that the marriage was false.
The applicant said that he told his solicitor in 1996 after the police came to talk to him that it was a sham marriage but followed legal advice to maintain his position. The applicant said that right after his first discussion with his solicitor, his solicitor decided that this was the best way to run the case and the applicant followed his advice all the way through. The applicant gave evidence that if his initial legal advice had been to plead guilty, he would have done so. The applicant testified that he believed that his solicitor was acting in his best interests but he did not feel comfortable lying. The applicant gave evidence that he went to the IRT by himself but still went ahead and misrepresented the situation because his solicitor had explained the IRT process and told him to maintain his position. The applicant agreed, however, that it was open to him to tell the truth at the IRT.
The applicant told the Tribunal that he gradually realised that it was the first step that he had to take to tell the truth – he said that he must face his own conscience, regardless of what would happen.
The applicant gave further evidence in chief regarding the issue of Bridging visas to him in 1998. The applicant had received a letter from Mr McLeod dated 30 June 1998 (G4/19-27) which notified him of the cancellation of his visa and he attended an appointment with Mr McLeod the result of which was that the applicant was issued a Bridging Visa (Exhibit R1, page 2). The applicant testified that the Bridging Visa did not entitle him to work in Australia and so the applicant told his boss at Clarks Shoes straight away that he was not allowed to work. The applicant testified that his boss told him that he was owed lots of holidays and to go off to sort it all out. The applicant testified that he applied for permission to work and filled in the required form. His application was not allowed and he was told that he had money to live on. The applicant testified that he stayed home and had to ask for help from St Vincent de Paul's, who arranged accommodation and food and talked to the politicians for him. The applicant said that after two months, he was given permission to work. The applicant utilised his holiday entitlements, his leave without pay entitlements and some sick days to avoid losing his job. The applicant gave evidence that Clarks Shoes had held his job open for him and gave him his job back once he proved that he was allowed to work.
The applicant was recalled to give further evidence in relation to his reasons for applying for refugee status. The applicant testified that his original refugee application had already been refused and he believed it most likely that on review the application would not be successful. The applicant testified that in his statement (Exhibit A2) where he stated at paragraph 2 that he "feared persecution" he meant that he did not know what would happen to him if he went back to China, and if the local Police came to see him, there would be trouble. The applicant gave evidence that the police had paid a visit to his grandmother's house in Shanghai and asked his grandmother some questions about the way he was and how frequently this friend visited. The applicant was worried about the Chinese police in the event that he returned to China. The applicant said: "all I wanted was just try to stay away from that" (Transcript, p145). The applicant testified that this fear of persecution was not continuing now as it had all happened many years ago. However, at the time that he went to see his sick mother in China, he was still worried and took precautions to make his visit short and to stay with his cousin and not in a hotel.
The applicant was referred to paragraph 8 of his statement where, in discussing his feelings at the time of his initial contact with Mr Starczowski, the applicant stated: "I was really very concerned about my situation". The applicant testified that this concern was in general terms. He had found Australia to be friendly and helpful, with a promise that if you worked hard, you could achieve. The applicant was concerned about losing these things by returning to China. The applicant gave evidence that at the time of entering the sham marriage, his main concern was that he wanted to stay in Australia because he liked it but the fear of persecution was a concern to him too.
mr carmine gioiasa
Mr Gioiasa told the Tribunal that he was born in Italy but became a permanent resident in Australia in 1967. He is involved in certain social works and activities within the Italian community. He was employed by Clarks Shoes for 25 years until October 2000, when he was made redundant. He testified that when the applicant commenced work at Clarks Shoes, he worked under Mr Gioiasa's instruction.
Mr Gioiasa testified that he and the applicant became friends seven to eight years ago, soon after the applicant began to work for Clarks Shoes. Mr Gioiasa said that he would see the applicant socially once a week or every fortnight. Mr Gioiasa said that the applicant sometimes called around to his house for tea and helped his son with his studies.
Mr Gioiasa gave evidence that as an employee, the applicant was productive, punctual and had no quarrels or hassles with anyone. In addition, Mr Gioiasa told the Tribunal that he was the applicant's landlord when the applicant's marriage was finished and Mr Gioiasa rented him a unit. Mr Gioiasa testified that the applicant always paid his rent and kept the place clean and tidy.
Mr Gioiasa told the Tribunal that he believed that the applicant could find employment - the applicant was working up to the last moment that he could and had a keen eye for education. Mr Gioiasa testified that he considered the applicant to be a helpful person who had expressed interest in involvement programs to help the needy. Mr Gioiasa said that the applicant has never asked him for help, financial or otherwise, but Mr Gioiasa has now stepped in to pay the applicant's bills because of his current situation.
During cross-examination, Mr Gioiasa testified that he had never met the applicant's wife despite knowing early on in the friendship that the applicant was married. Mr Gioiasa told that Tribunal that he did think it was strange that he had social contact with the applicant but not his wife and asked the applicant about it but assumed that he did not want to talk about his family life. It was only after a while, after the applicant came back from his visit to China, that Mr Gioiasa found out that the applicant had married an Australian woman and that it was an arranged marriage. Mr Gioiasa testified during cross-examination that initially the applicant indicated to him that the marriage was genuine but then, at the same time as he first went to see his lawyer in late 1996, the applicant told him that it was not a genuine marriage.
Mr Gioiasa told the Tribunal that he knew early on that the applicant was subsequently convicted and had been given a suspended sentence. When shown two previous character references he had provided in support of the applicant (G8/86-87), he testified that he knew that the applicant had been convicted of the offences then even though he made no mention of the convictions in his letters. Mr Gioiasa explained that in the letters he was writing a character reference, a description of the man that he knew.
Mr Gioiasa testified during re-examination that it became generally known amongst staff at Clarks Shoes that the applicant had been convicted. Mr Gioiasa told the Tribunal that there were no problems with the applicant's workmates - Mr Gioiasa thought that initially there might have been some problems because of racism, but the fact that there were no problems was indicative of how they all felt about the applicant. The applicant had a lot of support because they all grew to know the applicant as "a humble, decent bloke" (Transcript, p81). Mr Gioiasa told the Tribunal that the applicant had showed a lot of remorse for his actions.
ms sandra lee colhoun
Ms Colhoun told the Tribunal that she is currently employed as electoral assistant to Vinnie Ciccarello, State Member for the Seat of Norwood. She has held this position for twelve months. She previously worked as personal assistant to former Federal Member for Kingston, Mr Gordon Bilney, for 13 years. Ms Colhoun referred to a witness statement prepared on her behalf (Exhibit A4).
Ms Colhoun testified that in her work answering the inquiries and concerns of constituents, she is very busy and must filter out the genuine cases. Ms Colhoun said that she deals with many immigration cases, as well as social security and taxation cases. She gave evidence that in her work she had to assess individuals quickly as to how genuine they were in what they were telling her.
Ms Colhoun gave evidence that she first met the applicant in August 2000 at the Norwood office. Saint Vincent de Paul's had referred the applicant to her. Ms Colhoun testified that the applicant told her that he had filled in and sent off an Application for Resolution of Status and she subsequently assisted him in ascertaining the progress of his application. Ms Colhoun testified during cross-examination that the applicant did not give her an opinion as to why his application was taking so long to process. He came to see her because the department had said that they would resolve the matter by the end of June 2000 and had not done so by August 2000. Ms Colhoun said that she did not recall a link between the conviction that he was embarrassed about and the delay in his resolution of status application.
Ms Colhoun gave evidence that she drafted a short letter of support for the applicant (G10/109) after his application was rejected by the Department of Immigration and Multicultural Affairs. During re-examination, Ms Colhoun testified that she was familiar with the workings of DIMA, had dealt the department over the years and had a background understanding of a resolution of status application. Ms Colhoun testified that in total, she saw the applicant about ten to twelve times.
Ms Colhoun gave the opinion that the applicant was a very shy, seemingly honest person. When the applicant first explained his situation, he was very embarrassed about the marriage and that the media had hold of his case. Ms Colhoun gave evidence that the applicant did not open up very much over time, but he struck her as an honest person who wanted to get on with his life. Ms Colhoun saw him as a person who had a case that really deserved attention. She understood that the applicant had been working continuously except for one short period last year when he was unemployed.
During cross-examination, Ms Colhoun said that the applicant was embarrassed that he had done something very silly and out of character. He had told her that he had gotten married and it was in the media and he had been convicted but he had come to see her about the state of play of the resolution of status application rather than about his criminal conviction.
Ms Colhoun testified that the applicant seemed to be an honest person and his only wrongdoing was associated with trying to stay in this country.
mr ong toon theen
Mr Ong Toon Theen told the Tribunal that he was Malaysian by birth, Chinese by heritage and has been an Australian citizen for about 30 years. He gave evidence that he has worked for Clarks Shoes for 27 years. His work finished in March 2000, due to redundancy. He was second in charge of the warehouse section. There were 14-15 workers on the floor and 3 in the office. Mr Theen testified that leading up to the closure of Clarke's Shoes, the management was running a very tight ship and was very conscious about costs.
Mr Theen told the Tribunal that he supervised the applicant for a number of years and found the applicant to be very reliable, trustworthy, accurate and meticulous and the applicant seemed to get along with everyone. Mr Theen gave evidence that he saw the applicant occasionally on a social basis. He even invited the applicant home to meet his family, something he does not do very often.
Mr Theen testified that he found out about the applicant's immigration offence from the newspapers. He spoke to the applicant afterwards and while the applicant did not appear to express any feelings, Mr Theen could tell from his manner that the he was troubled. Mr Theen testified that the fact that the applicant was convicted of this offence did not change his opinion of him – to him, the applicant was still the same person.
Mr Theen said that after the Immigration Department did not allow the applicant to work because of his Bridging Visa, Clarks Shoes paid the applicant all that it owed him and held his job open for as long as it could. Mr Theen said that this was a significant thing to do considering that the management was very conscious of costs and absenteeism. Clarks Shoes agreed to operate with one person short because of how highly the applicant's contribution was valued to the dispatching section.
During cross-examination, Mr Theen testified that he began to socialise with the applicant in 1996, after knowing the applicant for a while. He found out shortly after the applicant commenced work for Clarks Shoes that the applicant was married but he did not bring his wife with him when socialising with Mr Theen. The applicant had told Mr Theen that his wife was working as a District Nurse at the time, and Mr Theen assumed that she was working outside of normal business hours.
During cross-examination, Mr Theen admitted that the applicant did not tell him that he was involved in a marriage to gain permanent residence in Australia.
submissions of the parties
submissions of the applicant
Mr Rau, counsel for the applicant made the following submissions on behalf of the applicant during the hearing.
The applicant conceded that the applicant did not pass the character test as set out in s.501(6) of the Act because the definition in s.501(7) of "substantial criminal record" included any form of determination of the punishment of the offence. Therefore, the fact that the applicant's sentence was not a custodial sentence made no difference. As the applicant had been sentenced to a term of 12 months imprisonment, that was enough for him to be caught by s.501(6)(a) of the Act.
Mr Rau submitted that Parliament intended that some people who were guilty of substantial criminal conduct and therefore failed the character test might nevertheless be the beneficiaries of an exercise of the discretion in their favour. It was submitted that in the broad range of individuals who fall foul of the character test, the applicant must sit at the lighter end of that group and is a person who is deserving of an exercise of the discretion in his favour.

It was submitted that in looking at the applicant's criminal conduct, it was defined as "substantial criminal conduct" but was in an immediate sense a victimless crime, unlike assault or drug offences. In addition, the applicant had already suffered substantially in terms of having imposed upon him a term of imprisonment which was suspended, having to expend considerable funds on legal representation, suffering the personal indignity of being publicly identified in relation to the offences, suffering the humiliation of parting with $20,000 in order to arrange the marriage and the personal anguish of having to come to terms with what he has done.
Mr Rau submitted that the magistrate who heard the case was not of the view that it was such a serious case as to warrant imprisonment, giving him a suspended sentence instead. In relation to the applicant's admittedly false evidence at the Immigration Review Tribunal, it was submitted that the applicant now accepts that that was wrong and although not presently the subject of any charge, it was obviously a serious matter. Mr Rau submitted that the applicant had the decency to tell the truth even though he could have persevered with his original story.
Mr Rau submitted that there is no risk of the applicant repeating this conduct in future and all of the character issues that have been brought up about him relate back to the applicant having put his foot along the path of entering into a sham marriage and then being afraid that if he did not continue down that path, he would be worse off than if he continued. It was submitted that to the applicant's credit, he has actually gotten off that path and has come forward in a formal sense with what is the truth. It was submitted that the applicant told people from the start what happened and certain "spins" were put on it which were perceived to be to his advantage in terms of getting a visa. It was submitted that the applicant was not aware that the statement given to the Australian Federal Police was subsequently forwarded to the respondent on a number of occasions.
Mr Rau contended that, in looking at the applicant himself, there were varous indicators of good character. The applicant was an intelligent person capable of making a contribution to the Australian community, not only because of his tertiary qualifications from China but also because of his efforts in Australia. It was submitted that the applicant was fluent in the English language and has demonstrated both an aptitude and an application to the advancement of his own education. It was submitted that there was every reason to believe that if he did secure a position as an Australian resident, he would be able to continue with his educational achievements, perhaps to the point where he became accepted as a mechanical engineer.
It was also submitted that the applicant had demonstrated a commitment to work, accepting jobs lower than his educational level and gaining the respect of his fellow workers due to his diligent, reliable work performance. It was submitted that the applicant was a person to whom responsibility could be given and upon whom some reliance could be placed. In addition, despite his involvement in perpetuating the sham marriage, when the respondent told him that he could not work after being issued a bridging visa, the applicant told his employer that he could no longer work, and exhausted his holiday and sick pay and then went on leave without pay whilst he went through the process of negotiating the requirements of getting his visa conditions changed to allow him to work. It was submitted that by holding the job open for him, the applicant's employer was demonstrating the value placed upon the applicant as a worker.
In relation to the applicable policy, Mr Rau made the following submissions. In relation to the primary consideration of protection of the Australian community, it was submitted that this was not a crime which has a victim, the chance of recidivism is zero and there is nothing in the applicant's history to indicate that aside from this particular strange conduct, he has a propensity to perform other forms of criminal activity.
In relation to the applicant admitting to giving false evidence before the Immigration Review Tribunal, it was submitted that the applicant still had the choice to come to this Tribunal and maintain his position as it previously was but he chose to tell the truth, exposing the fact of him having lied for so long, a decision which could leave him worse off. In relation to his motivation for giving false evidence before the Immigration Review Tribunal, Mr Rau submitted that the applicant did seek legal advice prior to attending the IRT to the effect that he could maintain his position and he subsequently went to the IRT by himself.
In relation to deterrence, Mr Rau submitted that the crime itself is a mark of desperation and the ordinary person would not be involved such a shameful crime which also involved considerable expense. It was submitted that it was a crime from which one derived no satisfaction other than that it might provide one with status for the purposes of the Act. Mr Rau submitted that the actual deterrent of these sorts of cases is probably the conviction for the offence, considering the publicity attached to such a conviction and a greater deterrent could be achieved from catching those who propagate these schemes. Mr Rau submitted that at the end of the day, whether or not the Tribunal exercises its discretion in the applicant's favour would not make much difference in that if people are offering these services, then people who feel the need for them will continue to enter into such arrangements.
Mr Rau submitted that the fear of persecution should the applicant be returned to China was a motivating factor in his decision to enter into the sham marriage but not the predominant factor, which was that he had found Australia to be a very agreeable place to live. It was submitted that the reason why the applicant still committed a further offence in 1995, considering that he had encountered no problems in his visit to China the year before and could no longer be said to have a fear of persecution was because he had already committed himself by this time to his course of action – he was already married and had spent $20,000.
submissions of the respondent
Mr Leerdam made the following submissions on behalf of the respondent during the hearing.
Mr Leerdam submitted that the applicant did not pass the character test as outlined in s.501(6) of the Act and that the discretion in s.501(1) of the Act should be exercised in favour of refusing the subject visa.
It was submitted that, contrary to the views of the applicant that it is really only the one offence that the Tribunal should look at, the applicant's case had shown a repeated behaviour calculated to deceive the respondent and related authorities.
It was submitted that the sham marriage arrangement was entered into in 1993 for the payment of a fee in circumstances where all parties were under no illusions that the only purpose of the marriage was for the applicant to secure permanent residence. The applicant then made the choice in November 1993 to proceed down the spouse application path rather than the refugee application path. Mr Leerdam submitted that the offences for which the applicant was convicted were his 1993 and 1995 statements as part of applications for permanent residency in Australia to the effect that he was involved in a genuine marriage.
Mr Leerdam submitted that the dishonest conduct was continued by the applicant signing a statement dated 12 February 1997 (G8/74-83) in which he falsely claimed that at the outset, he believed the marriage to be genuine. This statement was subsequently submitted to the Australian Federal Police in the hope that the investigations and charges would not proceed. In the subsequent criminal proceedings, the applicant had the opportunity to come forward and admit his guilt but instead chose to plead not guilty. It was further submitted that in his evidence before the Immigration Review Tribunal in 1999, the applicant was still misrepresenting the nature of the fraud that had been perpetrated. It was submitted that despite the applicant saying that he had decided to come clean with the truth, the applicant had made these false statements because he believed that he had something to gain by making them. Mr Leerdam contended that these actions were not consistent with the applicant's assertion that he had decided to come clean the moment after the police came to see him in 1996.
Mr Leerdam submitted that the applicant was aware that the 1997 statement by him containing false statements was attached with submissions made by his solicitor and sent to the respondent on a number of occasions and there was no evidence of him trying to straighten the record with the respondent so far as his knowledge of his past offending behaviour was concerned. It was submitted that the applicant's change of heart in order to come clean has been a much more recent event than he was prepared to admit to. To support this proposition, Mr Leerdam referred to the applicant's decision to give false evidence before the Immigration Review Tribunal in 1999 when he was not represented by any particular solicitor and had the opportunity to come clean.
Mr Leerdam submitted that the applicant's decision to finally tell the truth was motivated by the view that to 'come clean' was his best chance of getting a successful result before this Tribunal.
Mr Leerdam submitted that the applicant's conviction means that he does not pass the character test in accordance with s.501(6)(a) and s.501(7)(c) of the Act because of his "substantial criminal record". It was also submitted that the applicant does not pass the character test because of his past and present general and criminal conduct, in accordance with s.501(6)(c) of the Act. It was submitted that there was a whole host of other information that would lead the Tribunal to the conclusion that the applicant did not pass the character test in that the applicant had shown a propensity and a disregard of the laws of this country so far as the Act was concerned and in addition there were also issues in relation to what he told the police during their investigations. It was submitted that despite the evidence given by the applicant's friends as to his nature, so far as the enduring moral qualities of the applicant are concerned there was no doubt that the applicant ought not be taken to be a person of good character.
In considering the discretion in s.501(1), it was submitted by Mr Leerdam that the discretion should not be exercised in favour of granting the subject visa. It was submitted that the applicant's past and present general conduct was highly relevant to the likelihood of an offence and the risk of recidivism as outlined in 2.10 of the direction. It was submitted that the risk of recidivism in this case was not at the zero rating because the current application for review was concerned only with a temporary resolution of status visa and if successful before the Tribunal, then in the future the applicant would be applying to the respondent for a permanent residence visa. In such an application, the applicant would again be in a position where he had to persuade the respondent that he satisfied certain criteria.
In relation to the deterrence issue, it was submitted that there were literally thousands of people in the early 1990's caught up in just the situation that the applicant has found himself in and there are still thousands of people who are applicants under the temporary resolution of status visa provisions, having been in Australia for long periods of time and hoping to become permanent residents. There would certainly be a message sent out to these people by the Tribunal's decision in the matter.
In relation to the applicant's motivation for committing the offences, it was submitted by Mr Leerdam that the applicant certainly had no fear of persecution-based motivation for continuing to give false statements after October 1994 when he returned from China on his Chinese passport after having encountered no problems.
the tribunal's findings, reasons and decision
The Tribunal would indicate at the outset that it has had regard to the whole of the evidence and the parties' submissions in relation to its findings, reasons and decision.
Section 501(1) of the Act relevantly provides as follows:
"501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note:Character test is defined by subsection (6).
…"
A two-stage process is involved in making a decision under s.501(1) of the Act on whether or not to refuse a visa on character grounds. First, the Tribunal must make a decision on whether the applicant passes the character test. If the applicant does not pass the character test, the Tribunal still has a discretion whether or not to refuse the visa. The Tribunal is mindful in its deliberations that it must comply with the direction of the respondent given pursuant to s.499 of the Act, regarding visa cancellation under s.501, in so far as it is relevant to the circumstances of this matter. This direction was given by the respondent on 16 June 1999 and is entitled "Visa Refusal and Cancellation under s.501 of the Migration Act 1958 – Direction No.17" ("the direction") (G7/55-68).
The first matter to be addressed is the question as to whether or not the applicant passes the character test under s.501(6) of the Act. This subsection sets out the grounds upon which a person does not pass the character test. Two of those grounds are relevant for present purposes, namely s.501(6)(a) and s.501(6)(c).
Subsection 501(6)(a) is as follows:
"501 Refusal or cancellation of visa on character grounds
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…"
Subsection 501(7)(c) is also relevant with respect to s.501(6)(a) and is as follows:
"…
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…"
The sentence imposed on 20 March 1998 by the Adelaide Magistrates Court was one of 12 months imprisonment. However the applicant was released forthwith upon entering into a bond in the sum of $200 to be of good behaviour for 2 years (G3/17-18). The sentence although not served clearly fulfills the requirements of s.501(7)(c) of the Act. For the purposes of the character test this means that the applicant is a person who has a substantial criminal record and the Tribunal so finds.
Accordingly for the purposes of s.501(6) of the Act the applicant does not pass the character test. For the purposes of s.501(1) of the Act the Tribunal is not satisfied that the applicant passes the character test and the Tribunal so finds.
The Tribunal now turns to paragraph (c) of s.501(6):
"501 Refusal or cancellation of visa on character grounds
…
(6)For the purposes of this section, a person does not pass the character test if:
…
(c)       having regard to either or both of the following:
(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; or
…"
For reasons which appear later the Tribunal would indicate that it is not satisfied that the applicant is not of good character for the purposes of s.501(6)(c) of the Act.
The Tribunal had the advantage of closely observing and listening to the witnesses who have oral evidence before the Tribunal. The Tribunal gained the distinct impression that the applicant did his best to accurately relate to the Tribunal the relevant factual circumstances. The Tribunal accepts the factual content of his testimony. The witnesses called on behalf of the applicant also did their best to accurately recount the factual circumstances relevant to the applicant and the Tribunal accepts their evidence in this regard. As to the opinions they held of the applicant, the Tribunal accepts that those opinions are genuinely held by them.
The Tribunal now turns to a consideration of the respondent's direction in so far as it is relevant to the circumstances of this case. The direction provides in part as follows:
"…
PART 2 – EXERCISING THE DISCRETION
2,1      If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2      The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or cancel a visa. 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.
PRIMARY CONSIDERATIONS
2.3      In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)       the protection of the Australian community, and members of the community;
(b)       the expectations of the Australian community; and
(c)       in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
…"
The best interests of the child is not a relevant consideration in these proceedings as the applicant is older than 18 years and has no children.
primary considerations
protection of the australian community
"…
Protection of the Australian Community
2.4      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. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5      The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)       the seriousness and nature of the conduct;
(b)       the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)       whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
a.        The seriousness and nature of the conduct
2.6      It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
(a)       the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
·     persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;
·     the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community;
(b)       organised criminal activity resulting in a conviction in Australia or elsewhere;
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
(d)       sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or threat of violence;
(e)       armed robbery (including robbery involving the use of imitation weapons), home invasion;
(f)        murder, manslaughter, assault or any other form of violence against persons;
(g)       terrorist activity;
(h)       kidnapping;
(i)        blackmail;
(j)        extortion;
(k)       arson;
(l)        serious theft (including 'white collar crimes'):
·     such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government;
(m)      crimes against children:
·     due to their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children;
(n)       any other crimes involving violence or the threat of violence:
·     such crimes are of special concern to the welfare and safety of the Australian community; and
(o)       ancillary offences in respect to any of the above offences, including:
·     convictions for attempting to commit any of the above offences;
·     convictions for conspiracy to commit any of the above offences; and
·     convictions for being an accessory before or after the fact in any of the above offences.
2.7      It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:
(a)       the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and
(b)       the repugnance of the crime:

crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.
(c) a lighter sentence would be incurred in Australia for a similar offence; or
(d) the non-citizen has been pardoned:
Note in some jurisdictions 'pardons' may only have the status of spent convictions legislation in Australia.
2.9      In relation to non-citizens who do not pass the Character Test due to convictions resulting from unsoundness of mind or insanity, the degree of recovery must be taken into consideration. If the non-citizen continues to rely on medication to control their condition, the non-citizen cannot be defined as having fully recovered. Moreover, the likely consequences of a non-citizen deliberately or accidentally not taking their medication must be considered.
b.        likelihood that the conduct may be repeated (including any risk of recidivism)
2.10     It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)       a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)       a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)       the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
c.        general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11     General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a)       the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b)       the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.
…"

The Tribunal now turns to the first of the primary considerations, namely, protection of the Australian community. As to the applicant's offending which led to his conviction and sentence on 20 March 1998, the Tribunal is mindful that it must form its own view as to the seriousness of it in the light of the respondent's direction. The direction clearly categorises such offending as very serious. There can be no doubt that it falls to be so described. It was a flagrant breach of the migration laws of this country for selfish purposes. It was premeditated and pursued with one purpose in mind, namely to achieve illegally permanent status in this country. It involved a course of conduct which included a great deal of deception and the payment of large sums of money.
Whilst the Tribunal accepts that the offending is explained by the applicant's desperation to stay in Australia that does not in any way excuse his actions. At the heart of the matter lies the applicant's involvement in a sham marriage. Whilst it might be said that there are those (as in this case) who are prepared to offer to people such as the applicant the opportunity of staying in Australia courtesy of contrived and fraudulent marriages, it must be remembered that that cannot come to be unless there are willing participants like the applicant. Without his complicity there would be no such offending.
Having regard to the level of risk to the community of the continued stay of the applicant, the Tribunal is obliged to have regard to the seriousness and nature of the applicant's conduct (paragraph 2.6(c) of the direction). For the reasons outlined above the Tribunal's finding is that the applicant's offending behaviour was very serious.
In accordance with paragraph 2.7 of the direction, the Tribunal has had regard to the actual sentences imposed upon the applicant on 20 March 1998. The Tribunal is mindful of the fact that the subject offences constitute to date his only criminal record. The repugnance of his offending must also be considered and whilst his offending does not rank in terms of repugnance with crimes of violence and the like against children, the elderly, the disabled and the incapacitated, they are still repugnant to the Australian community in the opinion of the Tribunal.
Paragraph 2.8(a) of the direction requires the Tribunal to take into account any mitigating factors provided by the applicant. The Tribunal takes into account all that has been put by the applicant in this regard. This includes his now expressed regret and sorrow for his offending behaviour. Whilst this has occurred late in the piece it must be given due consideration.
As to the likelihood that the applicant may repeat this conduct (paragraph 2.9(b) of the direction) the Tribunal would indicate it has formed the view that whilst it may be unlikely, it cannot be ruled out. The Tribunal's reason for so concluding is that the applicant's offending behaviour which led to his conviction in the Adelaide Magistrates Court was followed and compounded by his (now admitted) giving of false testimony before the Immigration Review Tribunal in 1999. That testimony related to a false characterisation by the applicant of what he now admits was a sham marriage. Whilst he has now admitted doing so and that is to his credit, the fact remains that the applicant in so doing has illustrated the lengths to which he is prepared to go in order to achieve his aims. The giving of false evidence is of course a very serious matter. This conduct must be taken into account and is relevant to paragraph 2.10 of the Direction, which provides as follows:
"…
2.10     It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:
(a)       a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;
(b)       a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and
(c)       the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
…"
Also relevant in this respect is the fact that on 20 March 1998 the applicant entered into two bonds to be of good behaviour for two years, which allowed him to be released forthwith after being sentenced to periods of 12 months and two months imprisonment. His giving of false evidence before the Immigration Review Tribunal was in clear breach of those bonds (ie, promises by the applicant) to be of good behaviour and reinforces the view of the Tribunal as to the lengths to which the applicant will go to achieve his object of remaining in Australia. Whilst the Tribunal has formed the view that the applicant has shown a propensity to disregard the law to achieve his own ends it is not satisfied that that constitutes an enduring moral quality such as to mean that the applicant would fail to pass the character test for the purposes of s.501(6)(c). When considering paragraph (c) and paragraph 2.10 of the direction regard must be had to the applicant's previous general conduct which shows that apart from his abovementioned offending he has no other recorded offending and has led a blameless and industrious life. His propensity does not rank in the overall context of his behaviour to date (ie, past and present criminal and general conduct) as being an enduring moral quality such that he is not of good character.
However, it is the above propensity which leads the Tribunal to conclude that the applicant may disregard the law in the future if the situation is such that he needs to in order to achieve his aim. Whilst the risk of that is not high it still remains and certainly cannot be ruled out and weigh in favour of refusing the subject visa.
The Tribunal now turns to the topic of general deterrence which the Tribunal must have regard to in compliance with paragraph 2.11 of the direction. The direction is directed at the likelihood that visa refusal would prevent (or inhibit the commission of) like offences by other persons. Those offences for present purposes are offences against the Migration Act 1958 and particularly those outlined in paragraph 2.6(c) of the direction.
In considering this question the Tribunal would indicate that it is mindful that considerations of punishment are not to be entertained in the exercise of the discretion as to whether or not to refuse a visa application. The punishment of the offending in question has been carried out by the court empowered to do so.
In the opinion of the Tribunal the question of general deterrence looms large and is highly relevant. In this regard the Tribunal's view accords with that of the respondent. The migration system relies heavily upon the accuracy and legitimacy of the background as portrayed by applicants. Flagrant and very serious breaches of the Act must be given significant weight in the exercise of the discretion reposed in s.501 of the Act in favour of refusing a visa application. In the exercise of this discretion the respondent and this Tribunal on review must be careful that would-be offenders are not encouraged to participate in offences such as those committed by the applicant. There is a need to deter offending of this nature which because of its very nature is not readily detectable. The financial rewards for complicity in this type of offending are great. As mentioned earlier in these reasons, offending of this nature cannot occur without the involvement and complicity of would-be visa applicants. They need to know that behaviour of that nature will weigh significantly in favour of the refusal of a visa and the circumstances of this particular matter dictate that that be so.
expectations of the australian community
In the above regard the Direction dictates as follows:
"…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen 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. Decision-makers should have due regard to the Government's view in this respect.
…"
The Tribunal has formed the view that the offences committed by the applicant which have at their heart the participation in a sham marriage are such that the Australian community would expect that the applicant would not be granted a visa. More particularly so when the applicant's offending is compounded by the giving of false evidence before the Immigration Review Tribunal on the very same topic which had brought about the original offending. This must significantly weigh against the granting of the visa in question.
other considerations
"…
OTHER CONSIDERATIONS
2.17     When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)       the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b)       genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)       the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)       family composition of the non-citizen's family, both in Australia and overseas;
(e)       the likelihood of the non-citizen seeking to evade any outstanding legal matter or ongoing liability;
(f)        the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)       the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)       any evidence of rehabilitation and any recent good conduct;
(i)        whether the application is for a temporary visa or permanent visa;
(j)        the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
…"

The Tribunal is mindful that other considerations must be given less individual weight than that given to primary considerations. The Tribunal takes into account in relation to subparagraph (a) of 2.17 that there will be disruption to the ties which the applicant has established in the Australian community as indicated in the evidence given by the witnesses he called on his behalf. This weighs against refusing the visa in question.
Subparagraphs 2.17(b) and (c) have no relevance. As to subparagraph 2.17(d), the Tribunal takes into account that the applicant has no family living in Australia and that his father still resides in China.
The next relevant consideration is that of paragraph 2.17(h). In this regard, the Tribunal takes into account that apart from the giving of false evidence before the Immigration Review Tribunal, the applicant has not been involved in any other offending behaviour before or since his involvement in the sham marriage. He has now openly admitted his past wrongdoing and that is to his credit. He has also expressed contrition in this regard and that is also to his credit. His overall work record is exemplary. He, to his credit, has done a great deal to advance his educational qualifications. He through his own efforts has attained proficiency in the English language. These matters weigh in the applicant's favour.
The Tribunal also acknowledges that the applicant has now been in Australia for a number of years. People speak well of him. The tenor of his evidence before the Tribunal would indicate on the face of it that the applicant is not likely to re-offend. The Tribunal accepts the applicant's intentions in this regard to be quite genuine but must also be viewed in light of the Tribunal's views as to the applicant's propensity to disregard the law when seeking to pursue his own ends. These matters weigh in the applicant's favour.
As to paragraph 2.17(i), the Tribunal is aware that the applicant's application is for "Resolution of status (temporary) Subclass 850 and Resolution of status Subclass 851" (permanent) (G5/29).
As to paragraph 2.17(j) the Tribunal accepts that the applicant's purpose of staying in Australia is to make this country his home. The applicant has, apart from his offending behaviour, been a useful citizen in this country. Given the necessary opportunities together with the industrious skills he has shown to date he might well become more than a useful citizen in the future if he were permitted to stay in Australia. This must be weighed in favour of granting his visa application. The remaining matters outlined in the direction are not relevant.
The Tribunal would point out that it is not constrained to have regard to only those matters raised in the direction under the heading of "Other Considerations". The Tribunal takes into account the hardship which the applicant may suffer should his visa application be refused and he has to return to China. In this regard the Tribunal accepts that the applicant has an affinity for this country which has strengthened with the passage of time. His opportunities are greater here than in China but he will not suffer at the hands of the Chinese authorities should he return. The Tribunal acknowledges that the living and social conditions here are of a higher standard than that which the applicant might expect in China. The applicant however will have the opportunity to see more of his aged father if he is to return to China. At the end of the day, the Tribunal accepts that the applicant will suffer some hardship for a time should he return to China and this weighs in favour of granting the visa in question.
The remainder of the direction relates to "Other International Obligations". The Tribunal would indicate that there are no relevant other international obligations in this matter. When the Tribunal inquired as to the applicant's safety should he return to China, the applicant indicated that he would not be at risk from the authorities or in any other respect should he return to China.
The Tribunal has kept in mind paragraph 2.2 of the direction when weighing the relevant considerations. Having regard to all the factors in favour of refusing to grant the subject visa and weighing them against the factors mitigating against refusal, the Tribunal is satisfied that the former significantly outweigh the latter such that it is appropriate that the Tribunal exercise its discretion to refuse to grant the visa sought by the applicant.
Accordingly for the above reasons the decision of the Tribunal is that the decision under review is affirmed.