Mak and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 165

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 165

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/772

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Jack Yee Fung Mak

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date18 February 2004

PlaceSydney

Decision The Tribunal sets aside the decision under review and remits to the Respondent with the direction that Lo Sui Lai passes the character test pursuant to s 501(6) of the Migration Act 1958.

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

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – spouse (class UF) visa – refusal on character grounds – past and present general conduct – examination of the Visa Applicant’s immigration history – examination of the Applicant and Visa Applicant’s relationship - discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against any hardship to the Applicant – Visa Applicant held to be victim of dishonest person who held himself out as a registered migration agent – character of Visa Applicant found to be not so deficient as to warrant her refusal into Australia – Visa Applicant passes the character test – decision of the Respondent set aside with the direction that the Visa Applicant passes the character test.

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

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

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

ReLeha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

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

REASONS FOR DECISION

18 February 2004	Mr RP Handley, Deputy President
Summary

1.      A delegate of the Respondent refused Ms Lo Sui Lai’s application for a subclass 309 (provisional) spouse visa on the ground that she is not of good character as a result of her past behaviour which constituted serious breaches of Australia’s immigration laws including remaining in Australia unlawfully and working without permission, obtaining a false Australian birth certificate and passport, working illegally in Australia and providing false and misleading information and documents to the Department.  This is the decision to be reviewed by the Tribunal.

Background

2.      The Applicant, Jack Yee Fung Mak, was born in Canton, China, on 22 July 1951 and is aged 52.  Mr Mak came to Australia in 1975.  On 12 May 1979, he married Ng Miu On and, on 19 December 1979, he became an Australian citizen.  The marriage ended in divorce on 14 October 1988 (T p107).  He and Ms Ng had two children: Barry Mak, born on 5 December 1979 and now aged 24, and Benny Mak, born on 30 January 1982 and now aged 22.   Mr Mak works as a chef.

3.      The Visa Applicant, Lo Siu Lai, was born in Hong Kong on 2 July 1965, is aged 38, and holds a Hong Kong passport.  On 11 October 1995, she arrived in Australia on a visitor visa valid for three months (T p58).   On 14 October 1995, Ms Lo met Mr Mak at the home of a friend at Beverly Hills, Sydney (T p119).   On 15 November 1995, Ms Lo lodged an application for a protection visa (T5 p33).  The application was made on the basis that she was a member of a group which opposed the take-over of Hong Kong by China, and that she feared she would be jailed if she were forced to return to Hong Kong (T p39).  This application was refused on 19 June 1996 (T 11).  Ms Lo lodged an appeal with the Refugee Review Tribunal (“RRT”) which, on 30 October 1997, affirmed the original decision on the basis that the Applicant did not provide any evidence of persecution by the Hong Kong authorities before her arrival in Australia or of a well-founded fear of persecution if she were to return, and she was therefore not a person to whom Australia has protection obligations under the Refugees Convention (T p79).  On 4 December 1997, Ms Lo’s bridging visa expired and she became an unlawful non-citizen, after which time she remained in Australia illegally.

4.      On 31 July 1997, Ms Lo was issued with an Australian passport after providing a false birth certificate stating that she was born in Darwin on 2 July 1965.  On 21 January 1998, Ms Lo left Australia for Hong Kong on this passport, returning on 17 February 1998 (T p249).

5.      In about April 1999, Mr Mak and Ms Lo commenced living together (T p89) and, on 23 June 1999, they were married in the Haymarket, Sydney (T p112).   On 7 September 1999, Ms Lo was issued with a Change of Name Certificate, registering her new name as Kalie Mak born in Darwin on 2 July 1965.

6.      When, on 21 March 2001, Ms Lo attempted to leave Australia using her Australian passport (T p249), she was stopped by immigration officials and detained in the Villawood Detention Centre.  The Department alleged that when questioned by Departmental officers, she admitted that she had purchased her Australian birth certificate and passport for $20,000 from a Philippino man in Chinatown (S p54).  On 25 March 2001, Ms Lo’s then migration agent lodged a second protection visa application for her, on the basis that her first application was invalid (S1).  This application claimed that she would be persecuted if she were returned to Hong Kong because she had previously been “mistreated and discriminated, tortured by the authorities” because of her employment working for a magazine which reported on political issues (S p7).  Ms Lo also applied for a bridging visa E at that time (S p42).

7.     On 27 March 2001, a delegate of the Department informed Ms Lo that her second protection visa application was invalid because she had previously sought protection and that application had been finalised (S p28).  Her then migration agent sought the exercise of the Minister’s discretion but this was refused on 2 April 2001 (S p32).  Ms Lo’s application for a bridging visa was also refused on 27 March 2001, a decision affirmed by the Migration Review Tribunal (“MRT”) on 9 April 2001 (S p51).  Ms Lo made a supervised departure for Hong Kong on 14 April 2001 (T p249).

8.      On 17 April 2001, Ms Lo lodged an application for a spouse (class UF) visa with the Australian Consulate General in Hong Kong (T p155).  On 2 November 2001, Ms Lo was interviewed by a Senior Migration Officer at the Australian Consulate (T20 p162).   On 23 November 2001, the Vice Consul (Immigration) advised Ms Lo that she was considering refusing her application and inviting her to comment  (T21 p166).   Ms Lo’s then migration agent responded on 26 March 2002.

9. On 22 March 2003, a delegate of the Respondent decided to refuse the grant of a spouse (class UF) visa to Ms Lo on the ground that she is not of good character because of her past and present general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”).   On 11 May 2003, Mr Mak lodged an application for a review of this decision with the Tribunal.

10. At the hearing, the Applicant was self-represented and the Respondent was represented by Kiran Grewal, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with supplementary documents (“the S Documents”) and further supplementary documents (“the FS Documents”). At the hearing, the Applicant gave evidence in person and the Visa Applicant and Echo Kwok gave evidence by conference telephone.

Relevant Law and Policy

11. 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 are met. The relevant ground in the current matter is paragraph (c), as follows:

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;…

12. 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. This 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”..

13. 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.

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

Evidence

15.      Mr Mak said he first came to Australia as a visitor in 1975.  A relative asked him to stay and work and he obtained extensions of his visa.  He was not at any time “illegal”..  He married in 1979 and became an Australian citizen.  He and his former wife had two children but divorced in 1988.

16.      Ms Lo first came to Australia in 1995.  She said she came as a visitor but with the idea of seeing if she could get a visa to stay longer.  She was worried about the future political situation in Hong Kong when Hong Kong was returned to China in 1997, particularly as a result of how the Chinese Government quashed the protest in Tiananmen Square in Beijing on 4 June 1989.  She had been working for a magazine in Hong Kong and was concerned at how the Chinese authorities might react to critical commentaries published in the magazine.

17.      On arrival in Sydney, Ms Lo went to stay with her friend Echo Kwok and her husband.   Ms Kwok had been one of Ms Lo’s High School teachers with whom Ms Lo had remained friends.  It was at Ms Kwok’s house that Ms Lo first met Mr Mak in about late October 1995 when he came to visit Ms Kwok and her husband.   Mr Lo and Mr Mak became friends.  They used to go out together – for example, to clubs, for meals and to go fishing.   Ms Lo learned about migration agents from reading the Chinese newspapers in Australia and went to seek the advice of an agent who was advertising in the newspaper, Abel Miranda of Davidson James and Associates, Solicitors.   On this first meeting with Mr Miranda, which took place on or about 17 October 1995, Ms Lo was accompanied by Mr Mak who spoke better English. For both, Cantonese is their first language.  Ms Lo spoke very little English at this time.

18.     At the meeting, Mr Miranda spoke English but also a few sentences of Mandarin some of which Ms Lo could understand.  He took her passport and documents and said everything would be “ok”; he was licensed by the Australian Government and she should trust him.   She did not know what sort of visa he was applying for on her behalf..  She paid him $5,000, for which he gave her a receipt, and signed the forms where Mr Miranda told her to sign.  At this time, she did not know what it meant to apply for refugee status.  When Ms Lo’s application for a protection visa was unsuccessful, Mr Miranda reassured Ms Lo that everything would still be “ok”..  She paid him another $5,000 on 30 April 1997 and a further $5,000 on 18 June 1997.  He applied for an Australian passport on her behalf organising all the necessary documentation.  Ms Lo denied that she had obtained a false birth certificate submitted with the passport application.  She knew nothing of this at the time.  Ms Lo then received a letter from the Passport Office asking her to attend an Australia Post office for an interview.  Mr Mak did not go with her.   She attended the interview where she showed the interviewer her Hong Kong passport, the interviewer checked her name and details and she signed a form where she saw her name and details.  She never told anyone at the Post Office that she was born in Darwin.

19.      When Ms Lo subsequently collected her passport, she saw the name of a place, “Darwin”, on the passport that she did not know and went to check this with Mr Miranda.   He told her that it was a genuine passport but the Department had made a computer error about her place of birth which was wrongly stated to be Darwin.  She asked him to have it amended for her.  He said he would approach the Department to fix the problem and have her correct place of birth inserted but it would cost a further $5,000.  She believed him.  He said, otherwise, she would have to wait to fix the error until the passport expired.

20.      Mr Mak said when he and Ms Lo noticed the mistake in the passport showing her place of birth as Darwin, Ms Lo paid Mr Miranda $3,000 to have the passport amended, agreeing to pay another $2,000 when this had been done.  When Mr Mak and Ms Lo followed up on this with Mr Miranda, he said her place of birth had been amended on the computer, but Ms Lo never received an amended passport.  In the end, Ms Lo asked him to refund the $3,000.  He gave her a cheque for $3,000 which was dishonoured and they continued to try and get him to refund the money but to no avail.

21.      Mr Mak said he was aware that Ms Lo’s initial visa application was for refugee status but he was not sure what this meant and he never saw the application filled out by Mr Miranda.  At that time, he was busy running his own takeaway business which closed shortly afterwards.  Mr Mak did not know anything about migration.  He went with Ms Lo to her first interview with Mr Miranda – Mr Mak remembered having to wait for hours.  But afterwards, she went on her own because Mr Mak was working.

22.      Mr Mak said he thought Ms Lo was eligible to apply for an Australian passport because her visa application was successful.  He did not know that Mr Miranda had used a false birth certificate to obtain the passport.  When Mr Mak noticed that Ms Lo’s place of birth as stated in the passport was wrong, he tried to insist with Mr Miranda that if the passport was wrong, he should fix it.  Mr Miranda emphasised that the passport was genuine but just had a computer error.  They would have to pay to have it fixed.

23.      Mr Mak said when his wife was detained at the airport in March 2001, he again tried to get the money back from Mr Miranda.  Mr Mak subsequently employed a solicitor, Michael Seymour, who also tried to recover the money but without success. 

24.      Ms Lo travelled to Hong Kong using her Australian passport on 21 January 1998 in order to see her mother who was sick with cancer, returning to Australia on 17 February 1998.  In about April 1999, Ms Lo and Mr Mak commenced living together.  They were married on 23 June 1999 and rented a room in Ms Kwok’s house at Glenmore Park.  A few months after their marriage, Ms Lo applied to change her name to include a Christian name “Kalie” and her husband’s surname “Mak”..  Ms Lo denied she ever told the NSW Registry of Births, Deaths and Marriages that she was born in Darwin, but she was required to show them her documentation.

25.      Ms Lo said she studied English until Form 5 at High School, but when she arrived in Australia, she could only speak a few words of English.  After she obtained her Australian passport, at her husband’s suggestion, she enrolled in a course at TAFE and studied English for three to four weeks.  She and a friend completed the actual enrolment.  Ms Lo acknowledged that when she returned to Hong Kong, people thought her English was very good although Ms Lo said, realistically, she still only speaks a few sentences. 

26.      Ms Lo said while she was in Australia she did undertake some work.  She helped take care of a friend in return for board and lodging.  She worked in a restaurant at which time she applied for a Tax File Number; she assumed her employer had paid tax on her account although she is not sure.  She also undertook voluntary work at several places where this was needed.

27.      Ms Lo was stopped at the airport when she was going through Customs as she was preparing to leave on a visit to Hong Kong accompanied by Ms Kwok.  Ms Kwok, in a statement prepared by Michael Seymour (T p189), said as they went through Customs together, the officer inspected their passports and they were then asked to go to an interview room.  Several other officers came to the room, one of whom asked Ms Lo for her other passport.  Ms Kwok interpreted in Cantonese.  Ms Lo was obviously frightened and answered she only had her Australian passport.  She did not have her Hong Kong passport with her.  Other officers came into the room and were very rude.  They kept asking for her other passport.  One asked where her Philippino passport was.  Ms Lo replied that she was “Chinese” and now had an Australian passport.  Ms Kwok said she was also in shock and scared.

28.      Ms Kwok said when Ms Lo was asked whether she was born in Darwin, she answered “Yeah, Yeah, Yeah” as she did to many of their questions.  Ms Lo was probably too confused and scared to answer properly.  The officers told Ms Kwok she was free to travel to Hong Kong – but by herself.  When Ms Kwok said she would stay with her friend, they told her to go.  Ms Kwok tried to reassure Ms Lo, telling her that it was probably better to say nothing until her husband or a solicitor came, and went to contact Mr Mak.  Ms Kwok said the officers treated Ms Lo very badly: they spoke in loud voices and were rude.

29.      Ms Lo was taken to Villawood Immigration Detention Centre where she was detained.  It was there that another migration consultant, Chandrani Buddhipala (S1) completed another visa application for her.  However, Ms Lo said she did not know what the nature of the application was.  Ms Buddhipala never came to see her again – she was too busy, and Ms Lo just signed the form where Ms Buddhipala asked her to do so.  Ms Lo confirmed that she later attended a hearing at the MRT on her application to review the refusal of a bridging visa.  She said she still does not understand the nature of visa applications. 

30.      Mr Mak said he and Ms Lo received advice that Ms Lo could not apply for a spouse visa in Australia.  She therefore returned to Hong Kong on 14 April 2001 accompanied by Mr Mak, to lodge an application through the proper channels.   Her application for a spouse visa was lodged on 17 April 2001.  Mr Mak returned to Australia after a week in Hong Kong and has not seen his wife since. 

31.      Ms Lo is currently living in Hong Kong with her parents and younger brother.  Her two older sisters have married and live elsewhere in Hong Kong with their families.  For the first few months after returning to Hong Kong, Ms Lo was unable to find a job because of the high level of unemployment.   She then obtained work in retail sales and now works in sales in a large department store.

32.      Initially, before Ms Lo obtained employment, Ms Mak sent her money for her support from Australia.  More recently, he sent her a total of $7,000 (being $2,000 and $5,000) to pay for an operation to remove a growth on a nerve on her face.  The second payment, of $5,000, was sent in about October 2003.  He also sent her $500 for her mother when she was hospitalised.   Mr Mak said he and Ms Lo maintain contact by phone several times a week.  They also write and exchange cards on birthdays and Christmas. 

33.      Mr Mak said if his wife’s application is unsuccessful he does not know what he will do.  Currently, he lives alone, renting a room in Ms Kwok’s house.  He often visits his mother who lives in Sydney.  His two younger brothers and their families also live in Sydney as do his two sons.  He sees his sons every month or two although they speak on the phone more often.  Both are single and live at Waterloo.  The older one, Barry, works in the Information Technology Department at the University of Technology, Sydney.  The younger one, Benny, works for a large graphics company.

34.      Mr Mak said he does not own any property in Australia.  He acknowledged that he could go to Hong Kong to live with his wife but said he is unlikely to be able to get a job there because of the high unemployment rate.  A particular problem currently is that, because of this matter, he has substantial debts: his credit card debt exceeds $20,000 and he owes his former solicitor, Michael Seymour, $10,000 having already paid him $7,000.  Mr Mak is working part-time in two different restaurants, earning about $700 per week net.  He said his only wish is that his wife be permitted to join him in Australia. 

35.      Ms Lo said if she is not granted a visa her and her husband’s lives will be destroyed.  She trusted a person who was a licensed migration agent; why should she have to suffer the consequences?  She applied for a spouse visa in the proper way.   She will keep on applying until she is successful.

Application of the Law and Findings

36. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Lo 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).

37. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, Ms Lo does not pass the character test, the Tribunal will proceed to consider the exercise of 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, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

38.      Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test.  Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).

39.      Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings.  The Tribunal notes that Mr Mak was self-represented and he and Ms Lo communicated through an interpreter.  The Tribunal accepts Ms Lo’s evidence that she relied on advice and assistance from Abel Miranda whom she believed to be a licensed migration agent and, therefore, trusted.  Ms Lo believed what he told her.  Her knowledge of English at this time was very limited and she relied on Mr Miranda to complete the first (protection) visa application on her behalf.  Her involvement seems to have been limited to telling him her story, presumably with Mr Mak’s assistance, at the first meeting with him on or about 17 October 1995, and signing the application forms where he asked her to do so.  She was not aware of the specific content of the application and had no understanding that she was applying as a refugee.   Ms Lo paid $5,000 to Mr Miranda on 17 October 1995 and agreed to pay a further $5,000 when the application was approved. 

40.      Ms Lo’s protection visa application was unsuccessful and she applied to the RRT for a review of that decision.  That application to the RRT was not in evidence before the Tribunal.  It appears that Ms Lo was aware that her visa application had been unsuccessful but was reassured by Mr Miranda that everything would be “ok”..  She paid him a further $5,000 on 30 April 1997 and another $5,000 on 18 June 1997.  Presumably these payments were in relation to his obtaining an Australian passport for Ms Lo, the application for which appears to have been signed by Ms Lo on 18 July 1995.  There is no evidence to suggest that Ms Lo believed that this was other than a genuine passport application. 

41.      The Tribunal accepts that Ms Lo was not aware that Mr Miranda had obtained a false birth certificate with her correct date of birth but stating that she was born in Darwin.  There is nothing to indicate that this detail was checked with her at the Australia Post interview.  It is consistent with Ms Lo’s account that when she and Mr Mak noticed the inclusion of Darwin in her passport, she went to see Mr Miranda to ask him about this.  His response was that this was a computer error.  According to Mr Mak, Ms Lo paid Mr Miranda another $3,000 to have the error corrected, promising to pay another $2,000 when this was accomplished.  Ms Lo has receipts for the other payments but not for this last payment of $3,000.  The remaining $2,000 was never paid because Ms Lo never received an amended passport, despite Mr Miranda informing her that the error had been corrected on the computer.  The Tribunal is aware of Mr Miranda’s reputation and his notoriety for involvement in various unscrupulous dealings for which he is currently serving a prison sentence.

42.      The Australian passport was issued on 31 July 1997.  Believing the passport to be genuine, Ms Lo travelled to Hong Kong on this passport departing Sydney on 21 January 1998.  She went to visit her mother who was sick, returning on 17 February 1998.

43.      The Tribunal has no doubt that the relationship between Mr Mak and Ms Lo is a genuine marital relationship.  Ms Lo registered a change of name after she and Mr Mak had married.  Essentially, she was changing her Chinese first name to a “Western” one.  The only matter of significance is the fact that Ms Lo’s place of birth is stated on the Certificate to be Darwin.  Presumably, this must have been taken from her passport.  Ms Lo denied that she told the Registry that she was born in Darwin.

44.      Ms Lo was detained when going through Customs with Ms Kwok, en route for Hong Kong, on 21 March 2001.  She would have already completed her Outgoing Passenger Card (FS p7) at this time and thus, believing she held a genuine Australian passport, it is understandable that she stated that she was of Australian nationality and an Australian resident departing temporarily because she obviously believed this.   She had previously used the passport in early 1998 to travel to Hong Kong without encountering any problems. 

45.      The Tribunal accepts Ms Kwok’s description of the interview at the airport as a frightening one for Ms Lo.  She was confused and clearly did not properly understand what was going on.  No interpreter was present and no file note or record of interview has been provided to the Tribunal, except a reference to a file note of 21 March 2001 and a brief description of what was recorded (S p54).  Ms Lo said that she responded “Yeah, Yeah, Yeah” to questions asked of her, which was corroborated by Ms Kwok.  Ms Lo was not carrying her Hong Kong passport with her.   Such evidence as the Tribunal has suggests that proper procedures were not followed at the interview and that it would be unsafe to place reliance on what was allegedly said by Ms Lo when in a confused and frightened state.

46.      Ms Lo subsequently consulted a migration agent, Ms Buddhipala, while she was being held in Villawood.  The Tribunal has not been provided with any explanation as to the extravagant claims made in her second protection visa application which appears to have been completed and lodged by Ms Buddhipala.  In the application, Ms Lo states her reasons for leaving Hong Kong:

I have been employed as a clerk and during my employment I was mistreated and discriminated (sic), tortured by the authorities…

There has been no suggestion of any evidence to support this claim which the Tribunal finds is false.

47.      Ms Lo acknowledged that she worked while she was in Australia, although exactly when is unclear.  Her evidence is that she worked at some stage in return for board and lodging and at another time in a restaurant.  She thought she had obtained a Tax File Number and assumed that her employer at the restaurant paid tax on her behalf. 

48.      After Ms Lo obtained her Australian passport, at Mr Mak’s suggestion, Ms Lo enrolled in a program to study English for three to four weeks. 

49.      Ms Lo has provided references as to her good character from a Hong Kong solicitor, Trevor Chan (T p198), from the director of a beauty centre in Hong Kong, Lam Yuen Chun (T p200), from a friend, Merridee L Rando (T p201), from a teacher of Ms Lo’s in Hong Kong with whom she has remained friends, Gladys Cheung Pik Kee (T p203), and from a friend who is a geotechnical engineer in Hong Kong, Ir Steve Ho-mo Chan (T p204).  All speak well of Ms Lo and state that she is an honest, conscientious and responsible person who was the victim of a dishonest migration agent.

50.      The Tribunal concludes from the above findings that Ms Lo was unknowingly the victim of an unscrupulous and dishonest person, Abel Miranda, who held himself out as a licensed migration agent and is notorious for his fraudulent conduct.  Ms Lo paid him a total of at least $15,000 believing he would be able to arrange permanent residence for her.  Initially, at least, Ms Lo’s English was poor, she had no knowledge of the immigration process and she relied on and trusted Mr Miranda.  She had no knowledge of the content of the protection visa application he lodged on her behalf nor of the false birth certificate he submitted with her passport application.  In the circumstances, it was not unreasonable for her to assume, as is common, that the bridging visa associated with her protection visa application entitled her to work pending a determination on the application.  Certainly, it was reasonable to assume an entitlement to work on an Australian passport being issued to a person.  

51.      The evidence – both her oral evidence at the hearing and the evidence of her conduct, as well as the evidence of Mr Mak, indicates that she believed the passport Mr Miranda obtained for her was genuine.  He was able to explain away the incorrect place of birth stated in the passport by saying this was a computer error which he would ask to have corrected.  Ms Lo relied on the passport and her belief that she was thereby an Australian citizen when she enrolled in a TAFE English course.  In the Tribunal’s view, the repetition of her incorrect place of birth on the Certificate of Change of Name, presumably taken from her passport, was not enough to trigger any further doubt in Ms Lo’s mind given the reassurance given her by Mr Miranda.

52.      The interview at the airport on 21 March 2001 when Ms Lo was detained en route to Hong Kong was obviously a frightening experience for her.   She was not provided with an interpreter, there was no proper record of the interview and her and Ms Kwok’s account of Ms Lo’s responding “Yeah, Yeah, Yeah” to questions is fairly typical of what can happen in such a situation where a person is confused and frightened.   The Tribunal therefore gives no weight to what allegedly occurred at that time.

53.      With regard to the second protection visa application, there is no explanation as to why the migration agent, Ms Buddhipala, who appears to have completed the form, repeated the earlier claims of fear of persecution and added an allegation of torture.  The reason for this has not been adequately explained although it is worth noting that Ms Lo was in detention at Villawood at this time, she appears to have seen the agent only once, and it would not be unreasonable to assume that she continued to be confused and frightened about her situation.  This does not, of course, excuse any misconduct on her part, although the Tribunal is not satisfied on the evidence that she was guilty of any misconduct – only that a question mark remains over this incident.

54.      The Respondent has sought to make much of Ms Lo’s lack of remorse.  In the Tribunal’s view, this is a reflection of her indignation that she is being punished for her conduct when she believed, at the time, that she was “doing the right thing” and pursuing a right of residence through the proper channels.  Her character witnesses attest to her good character and, in particular, to her honesty.

55.      Turning to the application of the character test, in the Tribunal’s view, Ms Lo’s “enduring moral qualities” are not so deficient as to show that it is for the public good to refuse her entry to Australia (Goldie (supra)). With regard to Part I of Direction No 21, the Tribunal is not satisfied that Ms Lo has knowingly been engaged in breaches of Australia’s migration law or made a false and misleading statement or declaration. While she must ultimately bear responsibility for the actions of an agent on her behalf, the Tribunal does not consider that the fact of her reliance on that agent is sufficient in the circumstances of this case to impute such deficiencies in her character as to be for the public good to refuse her entry. The Tribunal concludes that she does not fail the character test having regard to her past and present general conduct. She therefore passes the character test pursuant to s 501(6) of the Act.

56.      The Tribunal notes that the Applicant’s case suffered by reason of his lack of legal representation and limited English skills.  An experienced advocate could have made a much stronger case than presented by Mr Mak.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

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

Date/s of Hearing  27 January 2004
Date of Decision  18 February 2004
Representative for the Applicant               Unrepresented
Representative for the Respondent          Ms K Grewal, Solicitor