Mills and Minister for Immigration and Multicultural Affairs
[2006] AATA 322
•5 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 322
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1217
GENERAL ADMINISTRATIVE DIVISION ) Re
Ross Mills
Applicant
And
Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date5 April 2006
PlaceSydney
Decision The decision of the respondent is affirmed.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – provisional spouse visa – visa refused on the grounds of past and present general conduct and past and present criminal conduct – visa applicant charged with larceny – outstanding charges for possession of prohibited drugs – false and misleading information – visa applicant unlawful non-citizen for four years – visa applicant fails the character test – significant risk of recidivism – best interests of child not prejudiced if visa refused.
Migration Act 1958 ss 499, 501, 501(6)(c)(i) and (ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
5 April 2006 Professor GD Walker, Deputy President Summary
1. The visa applicant, Li Peng Deng, aged 44, was born in China and is a citizen of the People’s Republic of China. On 27 October 2004, she applied for a subclass 309 spouse provisional visa to reside in Australia with her husband, the applicant Ross Mills.
2. The respondent, the Minister for Immigration and Multicultural Affairs, refused Ms Deng’s visa application on the ground that she is not of good character including that she provided false and misleading information in entering the country and in various applications made to the Department of Immigration and Multicultural Affairs, she remained in Australia as an illegal non-citizen and worked without permission and she has a criminal record. That is the decision to be reviewed by the tribunal.
Issue
3. The issue for the tribunal in this case is whether Li Ping Deng 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 (provisional) visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) of the Migration Act 1958 (“the Act”) not to refuse the grant of a visa.
Background
4. The applicant, Ross Mills, was born in Broken Hill, New South Wales, on 2 July 1943 and is aged 62. He is employed as a construction and mining superintendent. On 6 April 1963 he married Cheryl Sperring, the marriage ending in divorce on 27 February 1982 (T p179). He has one adult child from that marriage, a daughter, Jennifer Mills.
5. The visa applicant, Ms Deng, was born in Tianjin, China, on 10 March 1962 and is aged 44. She is a citizen of the People’s Republic of China. On 8 April 1988 she married Guanping Li, the marriage ending in divorce on 5 February 1999 (T p144). There is one son from that marriage, Zi Cheng Li, born 27 May 1989, aged 16 who resides in China.
6. Ms Deng arrived in Australia on 12 November 1998 on a visitor visa granted for one month (T p239). On 11 December 1998, she applied for a protection visa and was granted a bridging visa pending the outcome of her application. In her application, she stated that she could not live in China because of her opposition to the Chinese Communist Party and the discrimination against her, particularly in the workplace, because of her opposition (T pp64-67). Her application was refused on 23 December 1998 and on 27 January 1999 she applied to the Refugee Review Tribunal (“RRT”) for a review of that decision. On 17 May 1999, the decision was affirmed by the RRT, which noted in its decision that the hearing was re-scheduled on two previous occasions because the applicant failed to give evidence when she had indicated that she wished to do so (T7 pp74-85). It found that her claims were implausible and inconsistent and had been fabricated.
7. In November 1998, Mr Mills and Ms Deng met in Chinatown, Sydney and in February 1999 they commenced living together.
8. On 20 April 1999, Ms Deng was convicted of larceny in the Sutherland Local Court and fined $200 plus $52 court costs.
9. On 21 June 1999, Ms Deng’s bridging visa ceased. On 22 September 1999, she applied for ministerial intervention and was granted a further bridging visa pending the outcome (T p239). On 16 February 2000, the Minister declined to intervene and on 20 March 2000, her bridging visa ceased. Ms Deng did not leave the country at this time, but remained in Australia as an unlawful non-citizen.
10. On 29 April 2000, Mr Mills and Ms Deng were married in a civil ceremony in Chinatown, Sydney (T p153). Ms Deng continued to live in Australia as an unlawful non-citizen.
11. On 21 January 2004, Ms Deng was arrested by police officers from the South East Asian Crime Squad at premises at Liverpool Road, Ashfield (T14 pp210-212). She was found with three packages of prohibited substances (two types of ecstasy tablets and amphetamines) concealed in her handbag and subsequently charged under the Drug Misuse and Trafficking Act 1985 with three counts of possession of prohibited drugs. Following charges being laid she was detained at the Villawood Immigration Detention Centre.
12. On 5 February 2004, Ms Deng was granted a bridging visa to leave Australia before 14 February 2004. On 14 February 2002, she departed the country (T p239).
13. On 7 October 2004, Ms Deng’s solicitor, Celia Ho of Ma & Company Solicitors lodged a prospective spouse application and accompanying documents with the Australian embassy in Beijing, China (T8 p86). At question 72 “Have you, or any other person included in this application ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” she ticked NO (T p99). Receipt of the application was acknowledged on 27 October 2004 when the visa applicant was asked to provide further details (T9 p186). Included with her application was a statement dated 24 March 2005 in which she said that she was given the amphetamines and ecstasy tablets by a friend and decided to take them to the party (where she was arrested) to share with two other friends. At the party she bought a packet of amphetamine and was given another packet free. It was while she was waiting for her friends that the raid took place and she was detained and searched and the drugs located. She said that she was ordered to appear in court on 10 February but that after her lawyer spoke with the judge her case was “revoked” and it was not until later, after she had returned to China, that she was informed she would have to appear in court when she returned to Australia. She stated “I am willing to accept whatever judgment the court will make on me. I will learn a lesson from my behaviour this time and swear that I will never commit such a thing again in my future life” (T pp194-195). She also admitted in a second statement, that she had been convicted of shoplifting and fined $250 as a warning: “I deeply regret for that matter and learn a big lesson from it. It taught the principle of conducting: one must be honest and observe the law. I swear that I will observe the law in the future and be a good citizen” (T p197).
14. On 6 June 2005, an officer of the character assessment unit of DIMIA informed Ms Deng that she was considering refusing her spouse (provisional) visa on the ground that she failed to pass the character test in s 501(6)(c)(i) and (ii) of the Act and inviting her to comment (T15 p213). On 28 July 2005, after having been granted an extension of time, Ma & Company Solicitors forwarded to the department, a statutory declaration by the applicant, together with a letter from Mr Mills and two character references (T21 p221). In her statutory declaration, Ms Deng said that she did not intend to provide false information to the department when she overlooked question 72 of her visa application; she did not realise that her migration agent had failed to include the details of her siblings in her protection visa application because she did provide this information; she did not know why her agent only included two of her former employers because she had worked for four different companies; on 5 April 2004 the police informed her solicitor that the charges relating to the possession of prohibited drugs is not going to be withdrawn and that she will have to appear in court on her return to Australia; she overstayed her visa to care for her husband; she loves Australia and wishes to stay; and that she loves her husband and is finding it very hard while they are apart (T pp223-224). Mr Mills said in his letter that his wife regrets her wrongdoing and that after discussing the matter with her, she would be able to demonstrate her understanding of being a good citizen (T p236).
15. On 11 August 2005, having considered all the submissions, a delegate of the respondent decided to refuse the grant of a visa to Ms Deng on the ground that she did not pass the character test because of her past and present general conduct and past and present criminal conduct including providing false and misleading information to the department in her protection visa application and current application, she failed to disclose her siblings in her protection visa application, she remained in Australia as an illegal non-citizen for approximately four years, she has a criminal conviction recorded against her and presently has three outstanding warrants to appear in relation to the possession of prohibited drugs and having decided to exercise his discretion under s 501(1) of the Act to refuse the grant of a visa (T pp9-22). This decision was notified to the visa applicant on 26 August 2005. On 23 September 2005, Mr Mills lodged an application for a review of this decision by the tribunal (T1).
16. At the hearing, the applicant was represented by Grace Chen, migration agent, Aussie Sino Angel Pty Ltd, and the respondent was represented by John Bird, solicitor, of Phillips Fox solicitors. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. Mr Mills gave oral evidence in person and Ms Deng gave evidence by telephone from China.
Relevant Law and Policy
17. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
For the purposes of this section, a person does not pass the character test if:
…
reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
18. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
19. 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.
Evidence on the character issue
20. At the hearing Mr Mills gave oral evidence. Ms Deng gave oral evidence from China with the assistance of a Mandarin interpreter sworn in to assist her.
21. Ms Deng arrived in Australia on 12 November 1998. Her son Zi Cheng Li, then aged 9, remained in China. As Ms Deng’s first marriage was dissolved on 5 February 1999, it is not clear who was taking care of her son during her four-year absence in Australia.
22. Ms Deng arrived on a visitor visa valid for one month. She states that her initial intention was to return to China after touring in Australia (Exhibit A3), but she brought little money with her. She states that not long after she came to Australia (although she does not state how long), the business for which she worked in China was closed, leaving her “facing unemployment and a broken-down marriage”. She thereupon “decided to remain in Australia to seek a new life. In order to survive, to pay migration agent and to support my son, I had to look for a job. I stopped working after getting married with my current husband, who supported me and paid for everything for me”.
23. Two days before her visitor visa expired, she applied for a protection visa through her then migration agent, Billie Shi. She was told by Ms Shi that if she wished to claim refugee status she needed a reason, for example the risk of persecution. Ms Shi gave her “some hints” about what to say. The application, which Ms Deng signed and declared to be true, alleged discrimination against her family during the Cultural Revolution period because of their background, and claimed that she personally risked political persecution if she were to return to China because she was opposed to the communist party and had among other things conducted group discussions with close friends dealing with such matters as the inevitable demise of communism. At the hearing she reiterated her fears of persecution, but her evidence on that point was at times hesitant and self-contradictory. While stating at times that she did fear persecution, she also said when asked to elaborate on the reasons for her protection visa application that she had problems in her life in China in the running of her business and with coping with governmental corruption, but played down the possibility of persecution.
24. Ms Deng pursued the protection visa application through Ms Shi from the initial stages, to the initial refusal, then to the unsuccessful appeal to the Refugee Review Tribunal (RRT) and the unsuccessful application for ministerial intervention. During that process she was granted a number of bridging visas, some of which gave her permission to work, the last bridging visa expiring on 20 March 2000.
25. She did not appear for the hearing before the RRT. She claimed repeatedly at the hearing of this application that she had not been notified of the RRT hearing. The RRT, however, noted that it had written to her on 5 March 1999 at the address nominated in her review application, and to her adviser, inviting her to attend a hearing to give oral evidence in support of her claims. She informed the RRT on 23 March 1999 that she wished to give oral evidence, and confirmed that her address was as previously stated. On 24 March 1999 the tribunal wrote to Ms Deng and Ms Shi notifying them that the hearing would take place on 22 April 1999.
26. On 21 April 1999, the day before the scheduled hearing, Ms Shi faxed the RRT stating that Ms Deng was not feeling well and needed a few days’ respite. A medical certificate dated 21 April 1999 was attached in support. The RRT wrote to the applicant and her adviser on 22 April 1999 rescheduling the hearing for 28 April 1999.
27. The copies of the RRT’s two registered letters of 5 March and 24 March 1999 addressed to Ms Deng were later returned unclaimed to the RRT. As Ms Deng informed the RRT on 23 March that she wished to give oral evidence, it is reasonable to conclude that the agent must have received her copy of the letter and discussed it with Ms Deng. Her submission of a medical certificate in support of the application for an adjournment also makes it clear that Ms Deng was aware of the hearing date.
28. After the two letters were returned unclaimed, the RRT telephoned Ms Shi on 27 April 1999 (the day before the rescheduled hearing) to confirm that she would be attending. Ms Shi then told the RRT that Ms Deng was still unwell and would therefore be submitting a request for a further adjournment, although she did not have a further medical certificate. That was not done, however, and Ms Deng did not attend the hearing on 28 April. Neither she nor Ms Shi later contacted the RRT.
29. On 6 May 1999 the RRT again wrote to Ms Shi recalling the conversation of 27 April and informing the agent that if no request for rehearing was received that day, the RRT might decide the application on the papers. Ms Shi then replied by fax the same day, stating that Ms Deng still had not been feeling well, that she had not seen a doctor as she was not entitled to medical benefits, and was seeking a new hearing. The RRT agreed exceptionally to a further, third, hearing date, on 14 May 1999, making it clear to Ms Shi that no further rescheduling could be expected. The agent informed the RRT by telephone on 7 May 1999 that Ms Deng would attend the hearing, but she failed to do so or to contact the RRT to explain her failure to attend (T pp77-78).
30. The RRT concluded that the visa applicant’s behaviour demonstrated a lack of good faith in relation to the offers of hearing, but gave that circumstance no weight in evaluating her claims (T p82). I respectfully agree with the RRT’s assessment of her lack of good faith. Her repeated requests for adjournments and ultimate failure to appear suggest that she knew her claims were unfounded and was treating the RRT appeal process purely as a way to gain time.
31. In reaching its decision, the RRT accepted that Ms Deng had experienced difficulties with a supervisor in her employment in China but was not satisfied that the other events occurred as described. It considered it implausible that she would have organised or conducted an anti-communist discussion group at her workplace in a manner that would become evident to a communist party supervisor. It was not satisfied that she was dismissed from her workplace in 1996 for political reasons, or indeed that she was dismissed at all, given that she had submitted documentary evidence, in the form of a passport, that she was employed as a manager in early 1999 and had submitted no documentary evidence to the contrary (T pp82-83).
32. On all the evidence, the RRT considered her claims implausible and inconsistent with known facts. The RRT was satisfied that her claims were fabricated (T p84).
33. Nothing in Exhibit A3 and in Ms Deng’s evidence at the hearing provides any reason to doubt the RRT’s conclusion that the visa applicant’s claims for refugee status on the basis of political persecution were fabrications. While Ms Deng said that her agent had made mistakes in completing visa application forms, such as in the number of siblings and the number of positions Ms Deng had held, she did not claim that Ms Shi had made the substantive protection visa claims without her knowledge or approval.
34. On behalf of the Minister, Mr Bird put it to her that the protection visa application, the RRT appeal and the request for ministerial intervention were just a scheme to buy her more time in Australia. She replied in the affirmative, adding that at that time Ms Shi had said she would be able to stay longer. I am not sure that she meant to admit by that answer that she pursued the whole protection visa process through its three stages knowing it to be a complete fraud, but on the evidence that conclusion is inescapable in any event.
35. Ms Deng admitted that following the expiration of her last bridging visa, she had remained in Australia for four years knowing that she had no permission to do so, but said that “I had my own reasons”.
36. Ms Deng had met the review applicant Mr Ross Mills not long after she lodged her protection visa application on 11 December 1998. Three days before her final bridging visa expired, they went to see a celebrant to make wedding arrangements and were married on 29 April 2000, a month after the visa had expired.
37. A month later Mr Mills had to travel to South Africa or Zambia where he had accepted a position in the mining industry. The plan was that they would both live there indefinitely, so long as Mr Mills remained in that position, but it was necessary for Ms Deng to return to China in order to lodge an application for a South African (or Zambian) visa. She arranged for Ms Shi to apply for a bridging visa to cover her departure from Australia and to purchase her ticket. Before that task could be completed, however, Mr Mills telephoned from South Africa to say that he was returning to Australia because of his own health, because his father was also in poor health and because he did not like the work.
38. Subsequently, she helped Mr Mills and his mother to take care of his father until his death. She said that she had stayed for that reason but had genuinely intended to leave for China before Mr Mills and his father had fallen sick. It was also true, however, that Ms Deng no longer had any use for a South African or Zambian visa and that is the more probable reason why she remained unlawfully in Australia.
39. Ms Deng claimed to have discussed her protection visa application with Mr Mills, and had told him that Ms Shi was her agent for that purpose. She had also told him about the rejection of her RRT appeal in May 1999, but had not shown him the RRT’s decision and reasons because, although he could read it, he could not explain it to her. That was particularly odd given that Ms Shi had not explained the grounds for refusal to her either, but had simply told her that her claims had been rejected as insufficient. If she genuinely feared persecution in China, one would expect her to want to know the reasons for the failure of her claim for refugee status.
40. While there were no doubt language difficulties between her and Mr Mills, the two were able to communicate well enough to form a relationship and get married. Even a broken translation of such a vital document, one would think, would be better than nothing. For his part, as will be seen below, Mr Mills said he knew nothing about the protection visa application and was unaware of her illegal status until her drug arrest.
41. Ms Deng also said that when she told Mr Mills that her protection visa application had failed, he had reassured her that after they were married “everything would be okay”. That also is inconsistent with his evidence.
42. In her evidence Ms Deng was less than forthcoming about her employment record in Australia, but it emerged that she had worked in a clothing factory and in a Blakehurst service station. For part of that time she held bridging visas that permitted her to work and she obtained a tax file number, but it was clear that for several months in 2000 she worked at the service station when she had no permission to do so.
43. Ms Deng admitted her conviction for larceny on 20 April 1999, relating that “I was fined at the court’s judgment a sum of $250 as a warning” (T p197). Of course a conviction and fine do not constitute a warning as such, though in a broader sense it would be prudent to treat them as one.
44. After cautioning, she was asked about the three charges pending against her for possession of prohibited drugs. She was arrested on 21 January 2004 at a Chinese new year party at a karaoke club in Ashfield after police found that her wallet contained five ecstasy tablets, a bag of amphetamine, two brown ecstasy tablets in another plastic bag, two resealable plastic bags containing white powder and a piece of foil containing clear crystals. The charges appear to relate to the first three items and she said at the hearing that she was in possession of three quantities of prohibited drugs, not six. She had obtained the powdered amphetamine from her friend Yang Ling and the two other quantities from the owner of the Mahjong Room at the Chinese New Year celebrations in the circumstances described in her statement dated 24 March 2005 (T pp194-195). She did not describe the composition of the white powder and clear crystals contained in the other three small packages found in her possession.
45. Asked if she knew that the possession of those drugs was illegal, she replied implausibly that she did not think it was illegal if the drugs were for her own use. She admitted, however, in her statement (T p194), that she was preparing to share the drugs with a friend named Joe and another friend named Allan Jackson, who is one of her character referees.
46. Tending to indicate good character, on the other hand, is the evidence that Ms Deng helped Mr Mills and his mother to take care of his father during his terminal sickness. Further, the applicant has filed a number of positive references (Exhibit A4). Of the seven letters from persons resident in Australia, however, none makes any reference to her breaches of the law or displays any awareness of them at all. Further, Mr Allan Jackson was one of Ms Deng’s intended partners in illicit drug-taking on the night she was arrested.
47. There are also four references from residents of Tianjin City, China, two of which make no reference to the visa applicant’s contraventions of law. In fact Mr Feng Mu, a lawyer, describes her erroneously as someone who “abides by laws and rules”, a phrase identical with one used by Mr Li Sun, of Kogarah. Ms Lu Lu Chen, however, writes that “I think her mistakes during her stay in Australia are not sufficient to put her down forever”. Dr Shu Hai Wang also seems aware that not all has been above board and writes, “I sincerely hope that you will kindly and leniently forgive her and show her you love and care” (Exhibit A4).
48. From those references one can reasonably conclude that Ms Deng can be a diligent employee, has given significant amounts of money to worthwhile charities and displays some positive qualities in her private life.
Evidence relating to discretionary matters
49. Much of the evidence on the character issue is relevant to discretionary factors as well. In addition, the evidence shows that Ms Deng is currently working in China, but Mr Mills sends her money to contribute to her support and that of her son. Zi Cheng Li, who turns 17 in May, is currently in the equivalent of Year 10 and has a little over two years of high school remaining. Ms Deng says that from Year 10 onwards education is not free in China and she cannot afford his school fees of about RMB10,000 per year.
50. Mr Mills, now aged 62, states that because of the nature of his work, he now spends about 10 months of the year in Sydney at a house in Alexandria that he has been renting for about five years. He owns a house in Broken Hill, near where his mother lives, which he has built since Ms Deng returned to China.
51. Mr Mills has long worked in the mining industry and has risen through the ranks to become a mining superintendent. Since meeting Ms Deng in 1998 and marrying her in April 2000, he has worked overseas only for a short period, for three months in Zambia. He also returned in order to be with his wife and because both he and his father were in poor health.
52. He has built the new house in Broken Hill with the intention of living there with his wife and her son, of retiring and spending the rest of his life there. He believes it would be very difficult for him to travel regularly to China or live there because his widowed mother, aged 92, who lives next door to his Broken Hill house, is in poor health and needs his assistance.
53. He has two sisters, but they live “far away”, although exactly where is not stated (Exhibit A2). His work requires him to live in Australia and he cannot take time off to travel regularly to China because his employer requires his services here. Although by not travelling to China regularly he is able to afford to send money to support his wife and her son, he does not think he could continue to do that forever. He could not afford to travel frequently to China or to continue sending money for their support indefinitely, as he will eventually retire and in due course might need his wife to look after him. His daughter from his first marriage and her family live in Brisbane and he would regard having to sell everything and lose close contact with his family and friends in Australia in order to be with his wife as a “huge disappointment and sacrifice”.
54. Mr Mills has investigated employment opportunities in China, with the China Rail Corporation and other enterprises. He did not find the terms of employment attractive and was unimpressed by their safety practices. He cannot speak Chinese and notes that if there is an accident the supervisor is invariably blamed and punished. The general work practices are different from those he has previously experienced and he has gained the impression that the relevant organisations would prefer not to employ a foreigner at all.
55. Mr Mills considers that he has established a good rapport with Ms Deng’s son. Although he does not speak Chinese, he says that Zi Cheng is starting to pick up English quite well, using tapes, a computer and other aids. He is at the age, Mr Mills said, where he needs a father to guide him.
56. As was mentioned above, his evidence about his state of knowledge in relation to Ms Deng’s unlawful status in Australia differed materially from Ms Deng’s. He now knows that she was unlawful from June to September 1999 and from March 2000 to January 2004. During those periods he saw her going to see her migration agent and on one occasion accompanied her, but was not able to follow what was said as it was for the most part in Chinese. He was, however, struck by the lack of documentation involved.
57. During the time she was unlawfully in Australia, he was under the impression that she held a bridging visa as a stopgap until a permanent visa could be obtained. He thought she was on some kind of bridging visa until the police telephoned him at work and told him that she was detained. He did not fully understand the position and did not look at her passport, nor did he see any correspondence relating to her status. At the time they met he was unaware that she had a protection visa application pending as she did not discuss the situation with him beyond saying in 1999 that she was going to see Billie Shi about a bridging visa. She did not say it was an application based on refugee status and had not told him anything that would suggest that she had any basis for such an application, beyond saying that she had experienced a hard life in China.
58. I consider Mr Mills to be a reliable witness and that Ms Deng in reality told him nothing about her protection visa application or her unlawful status after it failed. She sought to deceive this tribunal on that point just as she deceived Mr Mills for years about it. She might have continued to keep Mr Mills unaware of her unlawful status indefinitely had she not been arrested.
Application of the Law and Findings of Fact
59. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(i) and (ii), Ms Deng passes the character test having regard to her past and present criminal conduct and 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).
60. As Senior Member Ettinger has said, “There must be honesty and integrity amongst visa applicants so that they are treated fairly and that their claims are assessed by the same standards” (Re Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1246, paragraph 17).
61. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Ms Deng does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
62. In relation to s 501(6)(c)(i), the person’s past and present criminal conduct, paragraph 1.8 of Direction No 21 states that decision-makers must take into consideration, when making their decision, the nature and severity of the offences, when they were committed, any pattern of recidivism and disregard for the law.
63. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
64. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
65. The visa applicant came to Australia on a visitor visa which she obtained by falsely representing herself as a tourist when it is plain that she had no intention of returning to China once the visa expired. She applied for a protection visa on fabricated grounds and persisted with her attempts to deceive through the stages of initial application and refusal, RRT appeal and application for ministerial intervention. She made faint attempts to revive those claims at the hearing in this tribunal. She remained unlawfully in Australia for four years and worked unlawfully without permission for several months in 2000 at least. She made false statements in visa applications concerning her criminal conviction and the number of siblings and previous employers she had. The latter two statements, she said, resulted from mistakes by her agent and were in any event immaterial. As regards non-disclosure of her criminal conviction, she says that also was inadvertent, and in any event she enclosed a copy of her criminal record with the application. I am prepared to give her the benefit of the doubt on those three points, but there is no doubt in relation to the protection visa claims.
66. She has a conviction for larceny and three drug charges, which she admits, outstanding against her.
67. The visa applicant has displayed a pattern of deceit and of disregard for migration law, exemplified by her statement at the hearing that she stayed in Australia illegally because “I had my own reasons”, as if such matters were no concern of the Commonwealth’s. She has a conviction for an offence of dishonesty and she deceived her husband, both before and after their marriage, for several years about her migration status in Australia. The circumstances and nature of her admitted drug violations do not immediately suggest a person with no prior experience of narcotics, although as that point was not put to her in cross-examination I place no weight on it.
68. There is character evidence in her favour but it is nebulous or, in the case of Mr Jackson’s reference, suspect in itself. There is little evidence of recent good conduct and her attempts to deceive the tribunal at the hearing provide grounds for concluding that there is a risk of recidivism.
69. On the basis of all the evidence I find that the visa applicant does not pass the character test by reason of her past general and criminal conduct.
70. Having so decided, I must then consider whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Ms Deng. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
71. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
72. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (a) the distribution (including possession for this purpose) of illicit drugs (particularly illicit drugs of dependency or addiction), (c) serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
73. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
74. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(a) that the possession of drugs and 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. In this case, the visa applicant has been convicted of larceny and has three outstanding warrants against her relating to the possession of prohibited drugs, namely two types of ecstasy tablets and amphetamines. The tribunal notes the statement of Ms Deng made 24 March 2005 which acknowledged that she knew she was in possession of illicit drugs and that she intended to share them with her friends “Joe and Allan” (T p194). The visa applicant’s conduct in making false and misleading statements in relation to her entry into Australia on a visitor visa and her protection visa application and then remaining as an illegal non-citizen is also very serious.
75. The next issue for the tribunal to consider is the risk of recidivism. The respondent submits there is a considerable risk that the visa applicant will continue to act unlawfully and dishonestly if she is permitted to re-enter Australia. In his statement of facts and contentions, Mr Mills submitted that the visa applicant has committed only one isolated minor incident and that the department should not assume that Ms Deng is guilty of the drug offences as she has never been convicted and that it was migration agents, not Ms Deng, who made the false and misleading statements to the department (Exhibit A1).
76. As regards the three particular false statements mentioned above, I accept that submission, but that still leaves the visa applicant with a larceny conviction, admitted drug violations and a long record of contemptuous disregard for migration law in which she persisted up to and including the hearing in this tribunal. There is a significant risk that she will re-offend in similar ways in the future.
77. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. It suffices to say that granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law.
Expectations of the Australian Community
78. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
79. In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it. That expectation weighs against the grant of a visa to the visa applicant who has engaged in consistent and sustained abuse of the migration system, has been involved with the criminal justice system and who displays no clear evidence of reform.
The Best Interests of the Child
80. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”. I also note paragraph 2.16 of Direction No 21, which sets out considerations which the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
81. In this case, Mr Mills has no children under 18. Ms Deng has a son, Zi Cheng Li, who turns 17 next month. Zi Cheng lives in China with Ms Deng and has never been to Australia. He is a Chinese citizen and has lived all his life in China. Although Mr Mills says that Zi Cheng is making progress in the learning of English, he would at his age face great difficulties in learning a new language to the level required for tertiary or higher secondary education. It is far from clear that it would be in his best interests to move to Australia at this stage rather than completing his secondary education in China, by which time he would be over 18.
82. Mr Mills says that he gets on well with Zi Cheng and that he is at an age where he needs a father, but the evidence does not suggest that there has been enough time to develop the relationship to the extent sufficient for Mr Mills to be able to perform that role, quite apart from the language barriers that still exist between them. In the relatively short time remaining until Zi Cheng turns 18, its seems unlikely that Mr Mills would be able to exercise any substantial positive influence.
83. Paragraph 2.15 of Direction No 21 states that “In general terms, the child’s best interest will be served if the child remains with its parents”. Both the parents of the child in this case live in China. I therefore conclude that the best interests of the child will not be prejudiced if a visa is refused.
Other Considerations
84. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
85. In this case, a refusal to grant a visa to Ms Deng would not disrupt her family, all of whom reside in China. Mr Mills’s mother, daughter, grandchildren (presumably, as Mr Mills says his daughter has a family) and two sisters all reside in Australia. Her application is for a provisional visa, but in view of her record one could not be confident about predicting her conduct in applying for permanent residence or after obtaining it, if it were granted to her.
86. The respondent does not dispute that the marriage is genuine, though any assessment of its integrity must be somewhat tempered in view of Ms Deng’s withholding from her husband for several years the truth about her migration status.
87. Mr Mills entered into the relationship and marriage with Ms Deng without knowing that she was an unlawful non-citizen. He is thus an innocent party, though one could think, at least in retrospect, that a man with his experience of the world might have taken more active steps to explore the situation before committing himself to marriage.
88. It would not be easy for him to work in China even if he were successful in obtaining employment there, but he will turn 65 in three years’ time and there is nothing in the evidence to suggest that he could not receive his superannuation (if he has any) or age pension income in China. He would prefer not to move to China, however, and would face some hard decisions if Ms Deng is refused a provisional visa. That is a material factor favouring the grant of a visa, but in the ordinary course other considerations of this type do not carry the weight accorded to the primary considerations. In my view in this case the considerations of community protection and expectations outweigh the other considerations in this case.
89. The decision under review should be affirmed.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 8 March 2006
Date of Decision 5 April 2006
Representative for the Applicant Ms G Chen, Aussie Sino Angel Pty Ltd
Representative for the Respondent Mr J Bird, Solicitor, Phillips Fox Solicitors
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