Ng and Minister for Immigration and Multicultural Affairs - [2000] AATA 446

DECISION AND REASONS FOR DECISION [2000] AATA 446

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/579

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FON TZE NG
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date07 June 2000
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – failure to meet the character test – substantial criminal record – conviction for firearm offences

Migration Act 1958 – ss 499, 501

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

This is an application to review a decision of a delegate refusing an application for a general residence (spouse) visa on the grounds that the applicant did not pass the character test.
A refusal under section 501 of the Migration Act 1958 is reviewable by this Tribunal under section 500. A number of subsections (particularly subsection (6H)) limit the material to which the Tribunal can have regard.
At the time the applicant was advised that a refusal on character grounds was under consideration, he was represented by an accountant, Mr Pang. When the application for review was lodged with this Tribunal, he was represented by a solicitor, Mr Jason Li. Mr Li subsequently informed this Tribunal that he no longer acted for Mr Ng. Subsequently, the Tribunal was contacted by Mr Bock, a migration agent, who said that he was then representing Mr Ng. At a later stage, the applicant's present solicitor indicated that she was acting for Mr Ng and subsequently indicated that she was briefing counsel. The applicant was represented by counsel at the hearing. At a directions hearing with Mr Jason Li, the limitations of subsection 500(6H) were stressed. Subsequent representatives were also reminded by letter of the exigencies of the legislation. Notwithstanding these early warnings from the Tribunal, no written statement of evidence was supplied to the Minister at least 2 business days before the date of the hearing, nor was any additional document submitted on behalf of the applicant.
I must assume that Mr Ng's failure to heed the Tribunal's repeated advice was deliberate. Mr Ng chose not to give evidence, or to call any oral evidence, or to present any written evidence in support of his application. I am entitled to infer that his failure to do so was because he considered that nothing he or anyone else could say, and nothing in any written document which he could produce, would advance his case.
The result of this was that the evidence before me consisted only of the documents supplied to the applicant pursuant to subsection 501G, supplemented by further documents supplied pursuant to that section which were made available to the applicant only on the morning of the hearing. I thereupon adjourned in order to enable the applicant's counsel to take further instructions from his client in relation to these supplementary documents. The applicant's case therefore consisted only of submissions dealing with the way in which I should approach the available scanty evidence.
The applicant was born in Malaysia on 10 July 1969 and remains a Malaysian citizen. He arrived in Australia on 8 April 1989 on a student visa and was granted a temporary entry permit which was valid until 15 March 1990. He studied Year 11 and then enrolled in a graphic design course at the School of Visual Art in Crown Street. On 1 October 1990, the overseas student office of the Department of Education withdrew its support of his student status as he was no longer attending any courses.
During this time he met Ivy Po Man Choy (known as Ivy) who was born on 29 September 1972. Ivy subsequently became an Australian citizen on 18 April 1996. During this first period in Australia, he appeared to have some problems with the law. In answer to question 115 in his application for a spouse visa, relating to prior convictions he said:
"I was involved in a fraud court case in 1989. Because I was only a friend of the holder of the person who had the false card in possession I was fined with no criminal conviction and one year of good behaviour bond."

This is a statement of some precision in its details but no record confirming it appears in documents coming from court records put before me. The visa application was completed with assistance from a welfare officer at Long Bay Gaol. It is unlikely that he would have misunderstood Mr Ng in helping him complete the form. I have therefore concluded that on the applicant's admission, I should accept that he was charged with credit card fraud in 1989 and was dealt with by way of fine and good behaviour bond for one year. I am left without any information as to the extent of the fine, or the circumstances of the fraud.
The following year, he was involved in much more serious offences which also appeared to have arisen out of attempted credit card fraud.
The remarks of the sentencing Judge set out the relevant facts and the seriousness with which they were viewed by the Court:
"The facts of the matter are that at about 2.45pm on 28 November 1990 the prisoner was approached by security staff at the David Jones Store at Brookvale whilst attempting to purchase goods with a stolen credit card (the offence on the Form 2). When asked to accompany staff to an office, the prisoner struggled with the staff and removed a revolver from his jeans. He then struck Mr McFarlane on the forehead with the butt of a gun and then discharged a projectile. The bullet lodged in the ceiling. The prisoner then broke free from the staff and, whilst running off, paused and crouched slightly, holding the gun in both hands, pointed it at Mr McFarlane. He then left the store. Four other Asian persons who had been with the prisoner were later arrested and charged in respect of the credit card.
At the time of the offence the prisoner was in Australia as a student, having arrived here in 1989. Immediately after the offences, he returned to Malaysia.
He returned to Australia on 13 February 1995 to commence a relationship with a young woman now bearing his child. He was arrested at the Sydney Airport on his return and admitted the offences to the police. He was released on bail the day following his arrest.
…
The objective seriousness of the firearm offence is such that it calls for a full-time custodial sentence. Those prepared to carry illegal arms and use them, particularly in such a public place, so as to avoid their arrest must be dealt with harshly by the court. In addition, the prisoner was prepared to use the gun as a weapon to assault the person effecting his arrest, thereby adding to the total seriousness."

Four days after the David Jones incident, namely on 2 December 1990, he left Australia. Although he was still seeing Ivy at this time, there is no indication that he told her the true reason for his departure. During her interview, she stated that she did not find out about the David Jones incident until 1995. Mr Ng told her that he had to go back to Malaysia because his visa had expired. The fact is, however, that his visa had expired on 15 March 1990, some nine months before he left Australia. On these facts, I infer that he left this country in order to avoid facing charges arising out of his actions on 28 November 1990.
Records of interviews indicate that between 1990 and 1994, the applicant continued to have contact with Ivy by phone and by letters. She visited him once in Malaysia and they had a brief period together in Hong Kong. Apart from this, there is no evidence as to what the applicant was doing with himself all those years. On 19 January 1995, he was granted an Australian visitor visa valid for three months at Kuala Lumpur.
On 13 February 1995, he returned to Australia. The reasons for his return have not been fully explored and it has not been possible to cross examine the applicant on the subject. The applicant inferred in one interview that he had contritely returned to Australia in order to face the charges. However, it is clear from another interview with Ivy that he had not prepared her for his arrest and in fact had not told her about the crimes. This is more consistent with an attempt to slip into Australia without detection, rather than an attempt to face the consequences of his crimes and an attempt to cooperate with the Australian authorities.
He was arrested at the airport. The way in which the arrest came about has not been recorded and it has not been possible to ask Mr Ng concerning his version. A report from the New South Wales Police Service simply indicated that the applicant was interviewed in an electronically recorded manner and "fully admitted the offences". He was subsequently charged with three crimes, namely common assault, maliciously discharging a loaded firearm with intent to prevent lawful apprehension and attempting to obtain a benefit by deception (the credit card fraud). The third charge was not proceeded with after a conviction was recorded for the first two charges.
For the crime of common assault he was sentenced to a fixed term of six months imprisonment commencing on 28 July 1995, expiring on 27 January 1996. For the second crime of maliciously discharging a loaded firearm with intent to prevent lawful apprehension, he was sentenced to a minimum term of 18 months imprisonment commencing on 28 July 1995, expiring on 27 January 1997, together with an additional term of six months imprisonment commencing on 28 January 1997 and expiring on 27 July 1997.
While he was in prison, a daughter was born to the applicant and Ivy on 16 November 1995 and was named Cassandra. She was born in Sydney and is therefore an Australian citizen. Ivy also acquired her Australian citizenship while the applicant was in prison. They had married in Sydney on 11 May 1995, three months after he had returned to Australia and approximately three months before he was sentenced.
The applicant lodged his application for a spouse visa on 7 January 1997, prior to his release from Long Bay Correction Centre at the expiry of his minimum term on 27 January 1997. The prison records disclose no offences during his term of imprisonment.
On 14 May 1998, the applicant was convicted at the Downing Local Court for a "mid-PCA" driving offence. He was fined $400 and his driver's licence was cancelled for six months. The only explanation given for this offence came from the applicant's first agent, Mr Pang, who wrote "the mid range drink driving conviction resulted from a moderate consumption of alcohol during dinner after which he foolishly drove his car". Although no further details have been made known to me, it seems unlikely that an offence which involved a disqualification for six months could be regarded as trivial.
The application for his spouse visa was refused. It is this refusal which is the subject of the present review.
The applicant does not have permanent work but gains employment casually as a kitchen hand. He continues to be legally entitled to stay in this country by virtue of a bridging visa. Ivy works for Qantas as a flight attendant and frequently travels. It is not clear whether she lives in Sydney or Hong Kong, or both. Their daughter, Cassandra, is principally located in Hong Kong.
She is cared for by her maternal grandmother, Fung Lin Amy Lau (known as Amy). Cassandra has travelled to and from Australia with Amy and with Ivy's two sisters (known as Annie and Ada) on several occasions. Departmental records indicate that from the date of her birth until 24 May 2000, Cassandra has spent 902 days in Australia and 749 outside this country. Fifty five per cent of her life has been lived here and forty five per cent presumably in Hong Kong. By comparing the movement records of Amy, Annie, Ada and Ivy, it can be shown that Cassandra has always been in the company of one or other of those women while in Australia.
The visa was refused on grounds appearing in subsection 501(6)(c)(ii). It was said that because of the applicant's past and present general conduct, he was not a person of good character. In my view, it was inappropriate to choose this criterion to establish whether or not the applicant passed the character test. Clearly he does not pass the character test because of the provisions of subsection 501(6)(a) as he has a substantial criminal record as defined by subsection (7). That subsection deems a person to have a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. As the applicant plainly does not meet the character test, the only issue to be decided in the present application is whether the Minister's discretion should be exercised in favour of the applicant.
A direction given under section 499 sets out the matters that are to be taken into account in exercising this discretion. There are three primary considerations, namely the protection of the Australian community, the expectations of the Australian community and the best interests of any relevant child.
In considering the protection of the Australian community, I am to have regard to the seriousness and nature of the applicant's conduct. There are certain crimes which are set out in paragraph 2.6 of the direction which are given as examples of offences considered by the Government to be very serious. These include the crimes for which the applicant has been convicted, namely "assault or any other form of violence against persons… any other crimes involving violence or the threat of violence". The seriousness with which the crimes were viewed by the District Court was set out in the sentencing remarks of Judge Luland quoted above. The length of the sentences imposed is also an indication of the gravity of the offences. The applicant's conduct must therefore be viewed adversely in considering the protection of the Australian community.
The second aspect of this primary consideration which I must consider is the likelihood that the conduct may be repeated. There is no positive evidence before me that Mr Ng has broken the law of Australia (or any other country) since 1990 (except for the drink driving conviction). Nevertheless, the following aspects of his conduct make me reluctant to assume that the risk of recidivism is low.
Firstly, on his own admission, he was involved in a credit card fraud in 1989 and was dealt with by a Court.
Secondly, although the 1990 crimes arose out of a single incident approximately nine and a half years ago, the violence accompanying that incident gives cause for concern when viewed in conjunction with all the other aspects of his conduct under consideration.
These include the fact that he left Australia (as I have concluded) in order to escape the law. The fourth aspect turns on the circumstances of his return to this country. I am not satisfied that it was as a result of remorse and a desire to face the consequences, for reasons which I have already given.
Fifthly, the drink driving conviction cannot be dismissed. Although it was not a crime of violence, it was a moderately serious offence, indicating a degree of disregard for the laws of this country.
Sixthly, he has not complied with Australian migration laws and regulations in that he overstayed his visa by eight and a half months. It could well be that he also attempted to deceive the Department. His agent (no doubt on Mr Ng's instructions) described the circumstances of his crimes at David Jones as follows:
"We are instructed that our client was 20 years of age, he was in a shopping centre, when he was seized by two security guards. Our client pulled out a starter pistol containing blanks, and fired a blank into the air. In the process of running away, he turned around, and it is alleged that when he turned around, his starter pistol pointed to members of the public, resulting in the common assault conviction."

These circumstances are clearly contrary to those found by Judge Luland. At the time the representation was made by the applicant's agent, the sentencing remarks were not available. The decision under review was made, therefore, partly on the basis of this false statement. The sentencing remarks did not become available until the hearing before this Tribunal. For all the above reasons, I would not be satisfied that repetition of criminal conduct was unlikely.
The second primary consideration relates to the expectations of the Australian community. Paragraph 2.12 of the Minister's direction is as follows:
"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."

Although there are no details concerning the David Jones incident other than those that appear in Judge Luland's sentencing remarks, one must assume that it occurred during shopping hours and in the presence of members of public in the store. The firing of a pistol in those circumstances could cause great distress and alarm to those shoppers. The very nature of the crimes is such, therefore, that the Australian community would expect the applicant be not granted a visa unless there were counterbalancing primary considerations. The applicant's dishonesty and disregard for the law does not help the applicant in balancing those considerations.
The third primary matter to be taken into account is the best interests of Cassandra. She is now four and a half years old. Although she is an Australian citizen, she has spent almost half of her life overseas. Cassandra has been brought up by the applicant's mother-in-law. Because Ivy travels constantly as a Qantas flight attendant, there would be nobody to take care of Cassandra in Australia. The applicant said in one interview that it would be necessary to "look for a servant to take care of her" if she remained in this country. There is no evidence that Mr Ng has established any bond with his daughter. It was submitted by his first agent that:
"Our client has a daughter named Cassandra who was born in Australia, but presently resides with her grandmother in Hong Kong. We are instructed that it is planned that Cassandra will come to reside with her parents as a family if our client is granted permanent residence. It would be in the best interests of Cassandra and the family unit as a whole if our client was granted permanent residence, to enable Cassandra to spend her formative years in Australia and to be educated in Sydney."

From this submission is it plain that the family's plan for Cassandra to be educated in Sydney was conditional upon the grant of permanent residence to the applicant. There is no evidence that the best interests of Cassandra are served by setting aside the decision under review. There is no evidence that her best interests might not be served by the present arrangements under which she has a quasi-permanent carer in the family.
There are a number of secondary matters referred to as "other considerations" in the Ministerial direction. I am to consider the applicant's ties to the Australian community and any disruption that might be caused to these ties by the refusal of the visa application. There would, in fact, be little disruption to Mr Ng's family ties. Whether his wife lives in Hong Kong is not clear from the papers. However, Cassandra certainly lives there, as do Ivy's mother and sisters. The applicant's parents and all his siblings live in Malaysia. There is no evidence that the applicant has any business or other ties in Australia. He remains in casual employment. There is no evidence that Ivy is either physically or financially dependent on him.

Whilst there is no doubt that he has a genuine marriage, there is no evidence of any degree of hardship which would amount to a counterbalancing consideration. When Ivy decided to marry the applicant, she knew he was a person of character concern. She knew that he had not then been granted a visa to remain in Australia permanently. If she suffers any hardship by the refusal of his application, then it is to be discounted by the fact of her foreknowledge of the risk.
Whilst the Ministerial direction invites a consideration of any evidence of rehabilitation and any recent good conduct, there is none that has been put before me, except the fact that there have been no convictions since 1995. Examples of recent bad conduct are the drink driving conviction and the attempt to mislead the Department concerning the nature of the weapon used in the 1990 incident.
For all these reasons, I do not consider that the discretion should be exercised in the applicant's favour. The decision under review is, therefore, affirmed.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Date/s of Hearing  31 May 2000
Date of Decision  07 June 2000
Counsel for the Applicant  Mr Trevor Bailey
Solicitor for the Applicant   Ms Kira Raif
Representative for the Respondent        Mr Denis Hurley