Poon and Minister for Immigration and Citizenship

[2007] AATA 2074

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2074

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1447

GENERAL ADMINISTRATIVE DIVISION        )

Re             LIZA SUI YIN POON

Applicant

AndMINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

TribunalMr Julian Block, Deputy President

Date20 December 2007

PlaceSydney

DecisionThe decision under review is affirmed.

...................[sgd]...........................

Mr Julian Block
  Deputy President

CATCHWORDS

IMMIGRATION – refusal to grant spouse visa – failure to satisfy character test – previous application refused – breaches of immigration law – Australian resident spouse sponsored former spouse – Australian resident spouse aware of visa applicant’s prior breaches of immigration law – decision under review affirmed

RELEVANT ACT/S:

Migration Act 1958 ss 417, 499, 501

CITATIONS

Re Liza Sui Yin Poon and Minister for Immigration and Multicultural Affairs [2000] AATA 964

Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714

OTHER REFERENCES

Direction – Visa Refusal and Cancellation under section 501 – No. 21

REASONS FOR DECISION

20 December 2007 Mr Julian Block, Deputy President

PART A - background and introduction

1.      The decision which is under review in this matter is the decision by a delegate of the Respondent refusing the grant to Shou Hing Ngai (“the Visa Applicant”) of a Combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa (“the Combined Visa”).  In respect of that application, the Visa Applicant was sponsored by his wife, Liza Sui Yin Poon, who is the Applicant in this review. The application was refused on the grounds that the Visa Applicant did not satisfy the character test set out in s 501 of the Migration Act 1958 (“the Act”).

2.      It is relevant to note that the Visa Applicant applied for the Combined Visa on 24 October 2003.  That application was refused by the Respondent’s delegate on 16 November 2004.  Following an appeal to the Migration Review Tribunal (“MRT”), the matter was remitted to the Respondent on 1 August 2005 for reconsideration.  The application was again refused by the Respondent’s delegate on 9 October 2006 and notice was given in respect of that refusal by letter dated 11 October 2006.

3. The Tribunal had before it the T documents and also Supplementary T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.  The Supplementary T documents are not numbered sequentially after the T documents.  Accordingly and in referring to the T documents, the Tribunal has referred to the relevant page or pages (by numbers) preceded by “T”; a similar procedure has been followed in respect of the Supplementary T documents except that the preceding letters in this context are “ST”.

4.      The Tribunal also admitted into evidence certain exhibits; in this regard:

(a)  Exhibits A1 and A2, being affidavits dated 1 March 2007 and 15 July 2007 respectively by Dr Christopher John Lennings, a psychologist.  Each of Exhibits A1 and A2 include by way of annexure a report made by Dr Lennings dated 24 January 2006 and 20 June 2007 respectively.  The report attached as Annexure A to Exhibit A1 is by far the lengthier and more comprehensive of the two reports.  It was made by Dr Lennings in the light of information furnished to him by the Applicant through her goddaughter acting as interpreter.

(b)  At a very late stage of the proceedings, and when the Visa Applicant was in the course of cross-examination, the Applicant tendered a batch of documents referable to the economy in Hong Kong and those documents were admitted by consent and collectively marked Exhibit A3.

5.      The Applicant was represented by Mr L. Karp of counsel instructed by Christopher Levingston and Associates, while the respondent was represented by Mr Brendan O’Brien of DLA Phillips Fox, solicitors.

6.      The Respondent in his Statement of Facts and Contentions dated 29 March 2007 referred to the Visa Applicant’s breaches of immigration law, in clauses 14 to 17 inclusive, as follows:

Breaches of immigration law

14.The respondent accepts that the visa applicant probably entered Australia lawfully on or about 31 August 1981, as the holder of a visitor visa valid for one month.

14.1The visa applicant remained unlawfully in Australia after the expiry of that visa, for a total period of unlawfulness of approximately 3 years and 5 months.  [p 132 of the T-documents]

14.2On 17 January 1985 the visa applicant was located in a restaurant in Cairns by the Respondent's compliance officers.  He gave his name and date of birth as "Goei Soei Khen" and "30.9.53" but otherwise refused to cooperate with compliance officers.  [p 4-5 of supplementary the T-documents]

14.3In a letter to the respondent dated 5 February 1985, the visa applicant stated:

"even though that I should be deported from Australia I shall still try to come back again by whatever means. I understand that some underworld society people may be able to help me in this way."

14.4The visa applicant was deported to Indonesia on 1 March 1985, pursuant to a deportation order dated 5 February 1985 (p 6 supplementary T-documents).

15.The respondent contends that the applicant again entered Australia on or about 30 August 1985.  The entry was illegal and by stowing away on a cargo ship.  He remained in Australia for a period of 12 years.  The visa applicant only departed Australia after being located by compliance officers.  His monitored departure took place on 12 December 1997 to Hong Kong. 

16.The respondent  contends that the visa applicant provided misleading statements  to Australian immigration officials in order to obtain a visa to enter Australia.

16.1In his present visa application, the visa applicant failed to declare that he was born by another name, GOEI Soei Kheng, which he had previously used in dealings with the respondent.

16.2The visa applicant also failed to disclose details of all of his previous spouse relationships.

17.The respondent  contends that the visa applicant was deported from Australia.

17.1After being detained in Queensland the visa applicant was deported to Indonesia on 1 March 1985.

17.2The visa applicant was also subject to monitored departure to Hong Kong on 12 December 1997.

7.      This application is only the most recent of numerous applications made by the Visa Applicant and the Applicant or, and more usually, by the Visa Applicant alone.

8.      In Re Liza Sui Yin Poon and Minister for Immigration and Multicultural Affairs [2000] AATA 964, the Tribunal (Dr D Chappell) affirmed the decision under review which was the refusal of a subclass 100 (spouse) visa applied for by the Visa Applicant’s husband, there referred to as Mr Joseph Shou Hing Ngai and sponsored by the Applicant. In that decision, referred to henceforth as “the First Poon Decision”, the Tribunal attached a chronology of events up to the date of that decision and reading as follows:

CHRONOLOGY OF EVENTS

DATEEVENT  DOC. REF

30-09-53DOB Ngai, Joseph (aka Goei, Soei Kheng)  f483

05-05-81Marries in Hong Kong (Yin Mee LO)               annexure to statutory declaration of Ngai (but cf f241 where he states married in 1980)

(on or about)

30-08-81 Enters Australia.  Applicant claims he entered with one month vistor's visa (but see f302).  Overstays his visa and remains in Australia                  see ff

04-11-81Daughter born in Hong Kong (Kar Hang NGAI).  Mother is previous wife, Yin Mee LO  f167

17-01-85Apprehended and taken into Immigration detention  f284

05-02-85Writes letter to Minister while in detention stating that if deported, he will try to come back again by whatever means. States that he was forced to leave Indonesia for political reasons "because Indonesian people doesn't like Chinese". (Doesn't mention residence in Hong Kong.) States he has considered entering a sham marriage to gain Australian residence but "I do not want to cheat her"  f298

05-02-85Is interviewed while in detention and tells DIMA that he arrived in 1981 as a 'seaman deserter'.  He refused to provide further details and DIMA searched his residence for papers  f302

01-03-85Deported from Australia  f294

05-03-85After being deported to Indonesia, writes letter to Department complaining that of being sent to Indonesia instead of Hong Kong and requesting help. Claims that he arrived in Australia on 31.8.81 on Cathay Pacific flight on a vacation.  f292

March orf170, f273 but

August 1985 Returns illegally to Australia as a stowaway  cf f397

1985-1990From his illegal return to Australia sometime in 1985 until lodgement of EETEP application, remains in Australia illegally, working illegally

09-02-90Files application for extended eligibility temporary entry permit Claims that was divorced in 1985 States that his travel docs were cancelled in HK and if he returned he would be imprisoned as an illegal resident  f136

13-09-90DIMA writes to Ngai enclosing assessment report re EETEP     ff154-159

20-10-90Signs statutory declaration re refugee application  f185

22-10-90Application for refugee status fills in Claims that he first arrived in Australia from Hong Kong on Thai International Airlines 30-8-81 legally and overstayed.  After deportation in 1985 he returned later in 1985 as a stowaway on a cargo boat. Claims that he obtained visa legally in Hong Kong in June 1981 says he was detained by DIMA in Dec 1984 states he has had opportunities to marry for citizenship but has refrained due to his principles  ff161-185

06-11-90Applied to DIMA for refugee status  f329

13-05-91DIMA refuses EETEP  f206

03-10-91Interviewed by DIMA in relation to refugee application              ff240-242

09-10-91Writes to DIMA reiterating hardship claims.  Again refers to opportunities for false marriage.  f236

26-10-92Refused refugee status by delegate of MIMA   ff248-257

04-12-92Applied for review of refusal of refugee status to RSRC           ff265-271

28-06-94RRT confirmed delgate's decision refusing refugee status  -he told the RRT that he travelled to Australia in 1981 on his Hong Kong (HK) certificate of identity (in lieu of a passport)  RRT sets out his earlier conflicting claims to DIMA and story of deportation in 1985 and his illegal return some months later RRT found Ngai was a permanent resident of HK and that this would not change in the foreseeable future (ff336-339). RRT noted Ngai made no claims to being persecuted by HK authorities "it is clear he does not like living in HK and seeks a better life in Australia...he speculates that things might be bad for him [when Chinese govt assumes sovereignty] but such speculation does not meet the demands of the Convention (f339)".  RRT noted that his fear of mistreatment for illegal departure was not a conventions claim but merely the fear of an ordinary criminal charge.

f328 and following (RRT decision)

12-07-94Lodges application for a class 816 (permanent) entry permit            f352

Easter 1995Ms Poon meets Mr Ngai  f43 & f23 (but cf f97)

10-08-95816 PEP is refused as DIMA has no record to show that Mr Ngai ever entered Australia legally in 1981  f352 and following

05-01-96Further RRT decision affirming delegates refusal of protection visa, class 817 and class 830 Entry permits.  Again a differently constituted RRT finds that he has no claims of persecution, convention related or otherwise and that his reasons for wishing to remain in Australia are lifestyle related    ff365-381

30-01-96Writes to Minister seeking his intervention under s.417  f384

08-10-96Lodges further protection visa application  f385 and following

12-11-96Is advised by DIMA that the further PV application is invalid in that it discloses no new information  f411

02-04-97Marriage to Poon  f14

06-03-98Mr Ngai applies for business visitor's visa (refused 12 March 98)         f8

12-08-98Mr Ngai applies for migration to Australia as a spouse

f8 (application is at f480 and following)

23-02-99Interview with Ms Poon and DIMA at Rockdale  ff43-46

07-09-99Ngai is interviewed by Australian Consul (immigration) in Hong Kong ff31-38

15-09-99Ms Poon is interviewed by Australian Consul (immigration) in Hong Kong  ff40-42

9.      In addition to the chronology referred to in paragraph 8 above, the First Poon Decision included a helpful and comprehensive summary of the relevant applications and events which had occurred prior to the bringing of the application which gave rise to the First Poon Decision.  In respect of the First Poon Decision:

(a)  Clauses 15 to 17 under the heading “Pre-Arrival in Australia” read as follows:

Pre-Arrival in Australia

15.Mr Ngai was born in Makassar in the Indonesian State of Sulawesi on 30 September 1953 (T:  483).  In 1958 Mr Ngai left Indonesia in company with his parents.  Mr Ngai indicated that:

My father was part Dutch and when he had to leave Indonesia in the 1958 he chose to go to China rather than going to Holland.  That was a mistake.  I have some European blood, and I am like a fish out of water in Chinese society.

(T: 610)

16.Mr Ngai's family then settled in Macau, and later Hong Kong.  Mr Ngai's father died in 1970 and he said that as a young man he had to look after a family of four, including his mother, brother and sisters (T: 610).  Mr Ngai also indicated that he received a primary and secondary education at a Catholic college in Macau from 1962 until 1969 (T: 485).

17.From 1970 until 1981 Mr Ngai worked on a casual basis as a truck offsider and truck driver.  He was also employed in a bank as a property maintenance staff member from 1977 to 1981 (T: 486).  In 1981 Mr Ngai married and a daughter was born of this union on 5 November 1981 (T: 57).  In an interview conducted with officials of the respondent in Hong Kong on 9 October 1998 Mr Ngai said of this marriage and the birth of his daughter that:

We had a lot of argument and my ex-spouse always considered herself only.  She said to me that she had to be the head of the family which was totally different from the time before our marriage.  I felt very disappointed and wished to travel outside Hong Kong.  At that time, I asked if she would follow me to go overseas.  Of course, she did not go with me.  She did not tell me she was pregnant before I went to Australia.  Our daughter was born in 11/81.  We finally divorced in 1986 and she had the custody of our daughter.

(T: 47)

(b) Clauses 18 to 19 under the head of “First Entry and Stay in Australia: 1981 – 1985” and clauses 20 to 21 under the head of “Second Entry to Australia: 1985 – 1990” read as follows:

First Entry and Stay in Australia:  1981 – 1985

18.In about August 1981 Mr Ngai travelled to Australia. There was dispute between the parties as to the manner in which he entered this country.  According to the respondent this entry was made as a seaman deserter (T: 302).  Mr Ngai, on the other hand, claimed that he came to Australia on a visitor's visa from Hong Kong (T: 169; T: 292).  Whatever the means of entry may have been Mr Ngai remained in the country for a number of years after the expiration of his visitor's visa.  During this time he engaged in a range of casual employment.  Mr Ngai, or Mr Goei as he was then known, was eventually apprehended by immigration officials after an anonymous caller had informed them of Mr Ngai's presence as a worker at a restaurant in Cairns.  Mr Ngai was subsequently deported from this country as a prohibited non-citizen.  The nature of that deportation, and the claims made at the time about his citizenship and like matters, appears from the following statement made by officials of the respondent:

HISTORY LEADING TO STATUS: Mr Goei said that he arrived in Australia 4 years ago as a seaman deserter.  He refused to provide any further details about himself and has refused to co-operate with departmental officers.  Documents found in Mr Goei [sic] possession include a birth certificate in the name of Goei Kheng, three drivers [sic] permits issued in Hong Kong in the name of Ngai Shou Hing, a Commonwealth Bank passbook which records first entry/deposit in September 1981 and a letter from the Indonesian Consulate (dated 11/2/82) concerning Mr Goei's birth details.  The Department holds no record of Mr Goei's entry to Australia by regular means nor has he been reported as a seaman deserter during the past 6 years.  Mr Goei's probable mode of entry to Australia was as an undetected stowaway.  There is no evidence to indicate that Mr Goei is the holder of any form of entry permit, hence he is a prohibited non-citizen.

PERSONAL CIRCUMSTANCES     : Mr Goei has refused to provide details about himself.

He has told an interpreter that he does not wish to be returned home and he would prefer to "rot" in prison.

POSSIBILITIES OF REGULARIZATION OF STATUS: Mr Goei could apply for a temporary entry permit but having regard to the applicable policy such an application is unlikely to be approved. Mr Goei does not fulfil any of the conditions of section 6A of the Migration Act for the grant of permanent residence in Australia.

(T: 302)

19.Following his deportation from the country to Indonesia Mr Ngai made his way back to Hong Kong.

Second Entry to Australia:  1985 – 1990

20.About six months after his deportation from this country Mr Ngai again entered Australia.  This entry was as a stowaway.  According to Mr Ngai he was:

miserable in Hong Kong.  I did not turn to criminals to come back to Australia.  One of the two other people detained with me in Cairns was a seaman with some connections.  I paid him Hong Kong $20,000 when I found him again.  He arranged to smuggle me on board a cargo ship and off again in Queensland.

(T: 33)

21.Mr Ngai said that on the second entry into Australia he brought no documents with him and after his arrival he went straight back to Cairns where his car was still stored and then went to other towns in Queensland and elsewhere in Australia.  He said it was very easy to avoid detection.  He would work for maybe three months in restaurants and he would then leave for another town when he felt that people were becoming too curious about him.  Mr Ngai also said the following in the course of an interview conducted with an official of the respondent in October 1999:

JNSH: I was angry because the bad people had obviously made allegations about me and because of them I had to leave Australia.  That's why I said that.

…

JNSH: … If I found out that the people I worked for were bad people then I would leave straight away.  I worked once for a powerful man in a Brisbane suburb – Russ Hinze used to visit the restaurant – but when I found that that [sic] he had some bad connections I left that place.  I never wanted to become involved in anything illegal.  I never cheated anyone in Australia.

TM: The only people you cheated were Australian authorities, the Australian community?

JNSH: Yes, if you put it like that.

(T: 33-34)

(c)  Clauses 22 to 32 under the head of “Immigration Applications: 1990 – 1997” read as follows:

Immigration Applications:  1990 – 1997

22.Mr Ngai next came to the attention of Australian authorities when in February 1990 he applied for an Extended Eligibility Temporary Entry Permit (EETEP) (T6).  This was in fact the first of a number of immigration applications lodged by Mr Ngai during the period from February 1990 until his marriage to Ms Poon in April 1997.

23.On 22 October 1990 Mr Ngai also lodged an application for refugee status in Australia (T9).  In completing this application Mr Ngai made a number of statements in response to questions asked about the circumstances surrounding his claim.  He said that neither he nor his family had been involved in any political activity during the time that they had lived in Indonesia (T:  173).  He said that the only time that he had been imprisoned was following his arrest in Queensland after his detection as an illegal immigrant and also after he had been deported to Indonesia (T:  175).  In response to a question asking whether he or any member of his close family had ever suffered torture, mental or physical mistreatment, Mr Ngai stated:

My father and mother and myself experienced tremendous anxiety and stress due to the revolution in Indonesia. Losing the family home, unemployment. This occured [sic] in 1956 – 1957. As my mother now lives in Hong Kong she is under constant medical care because of the trauma experienced in her life. It has been extremely difficult for me too and it has affected me emotionally as I feel I don't belong anywhere. I'd like to belong somewhere and live normally. This resulted because of political uprisings.

All the scars I have are deep in my heart and my mind.

I would be prepared to have a medical examination at the request of the Australian authorities.

(T: 176)

24.Mr Ngai also provided a quite comprehensive statement at the conclusion of his application concerning the reasons why he was claiming refugee status:

I have no feeling of belonging in any country and particularly do not qualify for citizenship in Hong Kong. As I was born outside a communist dominated country and later lived under communism in China. The change to China's domination of Hong Kong in the near future will cause untold hardship for me in 1997. I will be imprisoned in Hong Kong for an unspecified period as the government has cancelled my travel documents in 1985. It is also evident that dramatic changes will occur. Such as Hong Kong's economic position and its deterioation [sic] this will affect me materially. Physically and emotionally. It frightens me to know that these changes are just seven years away to be a communist controlled country. As I had extreme difficulties surviving in Hong Kong and China in the past and have experienced life under communism for e.g. the low standard of living and exiting without freedom of human rights, it is for these reasons and others that I risked my life to come to Australia again (stowaway). Up to this day I have applied for a temporary and permanent entry permit applied on 9-2-90. EETEP 824/828. No.90/600398. If however I am forced to return to Hong Kong (China) I cannot forsee [sic] a future for myself under communism.  As my mother and father lived under communism through its system. I have seen it contribute to my father's death and my mother has been afflicted by mental illness. I perceive a distinct disadvantage in being returned to Hong Kong/China. Because of the consequences my family have experienced. Already. As I have adjusted to the Australian lifestyle during the past nine years I would find it a hopeless situation. Living through those former conditions. During this time I have hade opportunities to marry to obtain citizenship but as I have feelings for other people I have refrained from doing so. Such a marriage would be a marriage of convenience and not for the love of the person involved I may have been wrong in what I did to enter Australia the second time but my principles dictate to me that to marry for the sake of legally establishing oneself is grossly wrong.

(T: 181-182)

25.Mr Ngai was questioned about the nature of these claims that he had made in this application at the time of his interview by Mr T. Menetrey, the consul, Immigration, at the Australia Consulate-General in Hong Kong on 7 September 1999.  In that interview Mr Menetrey asked Mr Ngai whether the application had been "bogus".  Mr Ngai responded by stating "that application was my only option.  Told by migration adviser Sydney." (see T:  34).  Mr Ngai also went on to state that:

By the way, I had plenty of offers to get married to Australian Vietnamese girls while I was in Australia, but I chose not to do that.  I could not do that just to stay in Australia – I mean, if you don't love the person.

(T: 34)

26.In May 1991 Mr Ngai's application for an EETEP was refused by the respondent (T:  206).  This refusal was based upon a finding that Mr Ngai failed to meet the prescribed criteria for such an entry permit  (T:  210).  On 26 October 1992 Mr Ngai's application for refugee status was also refused by a delegate of the Minister.  On 4 December 1992 Mr Ngai applied for a review of that refusal to what was then the Refugee Status Review Committee (RSRC) (T:  265-271).

27.On 28 June 1994 the Refugee Review Tribunal (RRT) which had by then taken over the functions of the RSRC confirmed the delegate's decision refusing Mr Ngai refugee status.  In reaching this conclusion the RRT said, in part, the following:

Thus the Tribunal concludes that the Applicant is, for the purpose of the Convention, at present and into the foreseeable future, to be identified as a Hong Kong Chinese and a permanent resident of Hong Kong. It is against Hong Kong that the Applicant's claim for refugee status must be assessed.

The Applicant at the hearing, in his submissions in his application for refugee status and at the hearing before the Delegate made no claim to being persecuted by the Hong Kong authorities. It is clear that he does not like living in Hong Kong and seeks a better life for himself in Australia but that does not meet the demands of the Convention.

It is clear that the Applicant has no wish to be in Hong Kong when the Chinese government assumes sovereignty over Hong Kong and he speculates that things might be bad for him then. But such speculation does not meet the demands of the Convention.

The Applicant claims that he will be mistreated by the Hong Kong authorities because he left Hong Kong Illegally in 1985.  The Hong Kong law (Ordinance 83) in relation to Stowaways states that it is indeed a criminal offence punishable on conviction by a fine of up to $1000 and imprisonment for 9 months to stow away on a ship in Hong Kong waters with the intention of obtaining passage without the consent of the owner. The Applicant may be guilty of that offence. However, criminal offences such as this do not fall within the ambit of the Convention.

The Tribunal concludes that the Applicant does not face a real chance of persecution should he return to Hong Kong.

(T: 339-340)

28.On 12 July 1994, following this RRT refusal, Mr Ngai lodged an application for a class 816 (permanent) entry permit to Australia (T:  352).  It was noted at the time of making this decision that:

Mr NGAI Shou Hing is a Class 816/818 applicant for permanent residence in Australia. (CB90 2762478)

He claimed to have arrived in Australia, originally, on 31 August 1981.

The Department of Immigration and Ethnic Affairs ('DIEA') has no record of any arrival and no visa in 1981 under both names.

DIEA records show that he was deported from Australia, pursuant to an order dated 5 February 1985, on 1 March 1985.  Mr NGAI was not granted a re-entry visa having been deported from Australia.

There is no evidence that the applicant was visaed to Australia overseas after his deportation and the applicant has produced no evidence and the Department holds no records of his lawful entry, using a visa, to Australia.

He entered Australia a second time, unlawfully, and gave the date of that entry as March 1985.

He has confirmed that has [sic] not been given an entry permit since he first entered Australia.

The foregoing is referred for your attention and entry on the MAL list as appropriate.

(T: 358)

29.On 5 January 1996 a further review took place by the RRT of Mr Ngai's claim for refugee status.  The Tribunal summarised the nature of the reviews which had already been conducted of this claim and also described how it was that the Tribunal was once more asked to conduct a review:

This matter concerns a decision made by a delegate of the Minister for Immigration and Ethnic Affairs (the Minister) in effect, to refuse to grant Mr Shou Hing NGAI (the applicant) Australia's protection as a refugee, as provided under the Migration Act 1958 (the Act) prior to amendments which came into effect on 1 September 1994.

The Applicant sought protection as a refugee by an application lodged with the Department of Immigration and Ethnic Affairs (the Department) on 6 November 1990. As this application for refugee status was lodged before 1 July 1991, it was deemed to be an application for a Domestic protection (temporary) entry permit (DPTEP) under Regulations 22D of the Migration Regulations.

The decision to refuse the application for refugee status was made on 26 October 1992 and the Applicant was notified of the decision by letter on the same day. No decision was taken in relation to the outstanding DPTEP. The Applicant applied for review of the decision to refuse the refugee status application on 4 December 1992.

The Tribunal, constituted by Member J A Gibbons, reviewed the delegate's decision to refuse the refugee application and affirmed that decision on 28 June 1994.

Because of legislative amendments to the Act and its Regulations, the deemed application for a DPTEP (Migration Regulations 1989, r.22) had effect, on 1 March 1994 as an application for a class 817 Protection (Permanent) entry permit (PPEP) (c.l817.711(4), Schedule 2, Migration Regulations 1993) and a class 830 Processing entry permit (PEP) (Reg. 2.29(1D) Migration Regulations 1993).

The Department made decisions on 18 July 1994 to refuse the application for a DPTEP (Regulations 22D), a class 817 PPEP and a class 830 PEP. He was notified of the decisions by letter dated the same day. The Applicant applied to the Tribunal on 1 August 1994 for review of these decisions.

(T: 366)

30.The RRT again rejected Mr Ngai's claim to be a refugee.  In doing so it noted that in his claims of persecution:

The applicant referred to his childhood experience of living in southern China after living in Indonesia and suffering 'culture shock' because of the vast difference in life style in the two countries.  As he has not lived in the PRC since 1963 and has subsequently lived in developed, capitalist societies in Macau, Hong Kong and Australia he is not comfortable with the prospect of living in the PRC again.  The Tribunal does not accept that the applicant's experience in the PRC is harm amounting to persecution, nor does it accept that he was subjected to harm that is

Convention related.

(T: 379)

31.The Tribunal also concluded that Mr Ngai was a national of the PRC rather than of Indonesia, Macau or Hong Kong (T: 381).

32.On 30 January 1996 Mr Ngai wrote to the Minister seeking his intervention under s417 of the Act (T: 384). On 8 October 1996 Mr Ngai also lodged a further protection visa application (T: 385). On 12 November 1996 the respondent advised Mr Ngai that his application for a further protection visa was invalid since it disclosed no new information (T: 411).

(d) Clauses 33 to 35 under the head of “Marriage and Departure from Australia: 1997” and clause 36 under the head of “Spouse and Related Visa Applications: 1997 – 2000” read as follows:

Marriage and Departure from Australia: 1997

33.On 2 April 1997, Mr Ngai married Ms Poon, the review applicant.  In a separate interview with Mr Menetrey in Hong Kong on 15 September 1999 Ms Poon told Mr Menetrey how she had met Mr Ngai.  Mr Menetrey also questioned her about the genuineness of her marriage to Mr Ngai, in light of her own prior marital history

TM:  Perhaps you can tell us a little bit about the circumstances of your relationship with Mr Ngai.

LPSY:  I got to know Mr Ngai in 1995 and we married in 1997.  I first came to know him during the separation period after my marriage broke up with Mr Wei.

TM:  I know that.  Your divorce with Mr Wei was finalised in February 1997 only 6 weeks before your marriage to Mr Ngai.  It appears that you finalised the divorce in order to marry Mr Ngai as quickly as possible because you wanted to help him to stay in Australia.

LPSY:  I know you suspect that our marriage is not real.  There are plenty of women whom my present husband could have married while he was in Australia, for money.  Why didn't he do that?  Why, if he was intending to make a marriage of convenience, would he marry someone like me who does not have a "clean record" either?

TM:  Good question.  Given your "record", can I ask you about why the Department should believe or give weight to the statements you are now making that this marriage is a genuine relationship?  I am talking about your record in relation to sponsoring people or being sponsored yourself.

LPSY:  My first marriage was not contrived. It was genuine, but my husband and I experienced difficulties when we moved from Fiji to Australia to carry on the business. I contracted a second marriage then only because I had run out of other options. My first husband also found somebody to marry so he could get residency.

TM:  Well that is precisely my point.  Unless there is something missing in the translation of my comments and your answers, my point is that it is in your background to marry in order to gain a benefit and when you have "run out of other options".  I consider that this is what you are doing in order to help Mr Ngai.  That is leading me to think that this is not a genuine relationship.

LPSY:  [Silence] …

(T: 40-41)

34.In her personal testimony to the Tribunal, Ms Poon continued to assert that she had entered into a genuine relationship with Mr Ngai, and a number of documents were tendered to support this assertion, including letters, phone accounts and credit card accounts accumulated since Mr Ngai left this country.

35.I shall come back to this evidence, but will also mention Mr Ngai's description, in the course of his interview with Mr Menetrey, of his marriage to Ms Poon.  Mr Menetrey asked Mr Ngai the following:

TM:  … can we discuss your present marriage to Ms Liza Poon? It seems to me, again based on the available information from the files, that this is a marriage of convenience to let you stay in Australia.  It seems to me that you were running out of options to stay in Australia at that time – early 1997.

JNSH:  That is not true.  It is a genuine relationship. I cane [sic] till on the run.  If I wanted to get married just to stay in Australia then I would have to "sell" you on the idea. But I am not a salesman. I can't do that. And as I said when I was in Australia I had plenty of offers to get married for money, but I just couldn't do it.

TM:  Perhaps Ms Poon just wants to help you to stay in Australia, and she thought that this was the way to do it?

JNSH:  You have to ask her.  I can't tell you.

TM:  Now, in the file sent to me from Australia there are applications signed by you for bridging visas to delay your removal from Australia.  Between September and December 1997 on five separate occasions you claimed that you did not leave Australia before the expiry of your visa because of a "marriage breakdown" (ff 60-73 file 97/117415).  What does this mean?  Your marriage of April 1997 to Ms Poon had already broken down?

JNSH:  No, that is not right. [Consults file.] I was tricked by the people in the office to write that.  I was writing about my first marriage, not the second.

TM:  I do not believe that. What was the relevance of your first marriage, which ended in 1986, to a set of applications written in 1997, six months after a new marriage?

JNSH:  I was tricked. [Sigh] I know you do not believe me, because now it is in the paper record. I meant the first marriage.

TM: What do you know about Ms Poon?  Do you know this is her fourth marriage?

JNSH:  I don't know that.  I know that her last husband did not treat her son correctly so they parted.  She has not spoken to me about her first marriage.  Because she …upset. I tried to advoice [sic] to ask her anything to upset her. Because of her illness

TM:  What about her third marriage to Mr Wei Zhi Yang?  Mr Wei received permanent residence in Australia on the basis of that marriage.  Has she spoken to you about that?

JNSH:  No.

TM:  That is surprising. Ms Poon divorced Mr Wei only 6 weeks before your marriage in April 1997.

JNSH:  I can tell that you do not think our marriage is genuine. I am just looking for a simple family life after so many years that I have endured on the run.

(T: 34-35)

In December 1997, Mr Ngai departed from Australia.

Spouse and Related Visa Applications: 1997 – 2000

36.On 6 March 1998, Mr Ngai, once again in Hong Kong, applied for a business visitor's visa to enter Australia.  This application was rejected very shortly after that date.  On 12 August 1998, Mr Ngai applied for immigration to Australia as a spouse, sponsored by his wife, Ms Poon (T44).  Interviews then took place of both Mr Ngai and Ms Poon, as I have already indicated, by Mr Menetrey in Hong Kong.  On 24 December 1999, Mr Menetrey, who was the Minister's delegate, refused the visa that Mr Ngai sought and gave his reasons in writing (T:  7-13).  These reasons indicated that the Minister's delegate was not satisfied that Mr Ngai met the character test.  The Minister's delegate also determined that he would not exercise his discretion in favour of Mr Ngai.  In relation to the marriage Mr Menetrey said:

On balance and taking note of statements from other persons who appear to have a sincerely held subjective belief in the genuineness of the relationship, I form the view that there are strong elements of contrivance in Mr Ngai's marital relationship with Ms Poon.

(T: 13)

10.     It will be noted then that:

(a) The Visa Applicant has made numerous applications of various kinds in respect of his efforts over many years to obtain residence in Australia.  He was not deterred by his original deportation from Australia in 1985 and he returned to Australia very soon thereafter as a stowaway.  He was then again obliged to leave Australia in 1997.

(b) During the period of his second stay in Australia the Visa Applicant applied for an Extended Eligibility Temporary Entry Permit (“EETEP”) in February 1990, a (Class 816) Permanent Entry Permit (“PEP”) in July 1994 and he made two separate applications for refugee status/protection visas. His EETEP and PEP applications were refused and his applications for refugee status failed. When his applications for protection visas failed, the Visa Applicant applied to the Minister under s 417 of the Act, which was also unsuccessful.

(c) After leaving Australia in 1997 and as appears, from the First Poon Decision, the Visa Applicant made an unsuccessful application for a business visitor's visa before making his first spouse visa application.

(d) It is clear, having regard to what has occurred in the past and on the evidence before me and including in this context certain aspects of the First Poon Decision, that the Visa Applicant was never a refugee and, moreover, knew that he was never a refugee.  See, in particular, clause 25 of the First Poon Decision set out at paragraph 9 above of these reasons.  But having failed in his first claim to be a refugee, the Visa Applicant made a further application for refugee status but which was refused on the basis that it did not contain any new information.  This application, which is under review, is the second spouse visa application.

11.     The Applicant has been in Australia for many years but she has learned almost no English, and she was therefore assisted by an interpreter.  The Visa Applicant has considerably more English, having lived for so many years (illegally) in Australia, but he chose for the most part to give his evidence through the same interpreter.

12.     In a brief opening statement, Mr Karp noted that the Applicant failed in respect of the First Poon Decision because Dr Chappell had doubts as to the genuineness of the relationship between the Applicant and the Visa Applicant.  Having regard to the content of the First Poon Decision and on a careful reading of it, it may be doubted whether the First Poon Decision would have been decided differently even if Dr Chappell had not entertained those doubts.  At all events, this latest application was referred back to the Respondent by the MRT on the basis of a finding by the MRT that the marriage was genuine.  Mr O’Brien, for the Respondent, elected to concede that the marriage is genuine, and this then is not a factor which requires further consideration.

PART B - the evidence of the applicant

13.     The evidence in chief consisted, to a considerable extent but not entirely, of the Applicant’s confirmation of her witness statement which appears at T pp170-173 and reading (verbatim) as follows:

I, Liza Siu Yin Poon, of …, in the state of New South Wales do hereby solemnly declare and affirm that:

1.I was born on 14 December 1951 in the People’s Republic of China (PR China).

2.When I was very young, approximately two years old, my parents left me. 

3.I grew up being looked after by an old woman who lived in our neighborhood.  My parents did not contact me and I did not know my parents.  The old woman told me that my parents went to Canada.

4.When I was about ten or eleven years old I moved to Hong Kong with the old woman.  I had a difficult life in Hong Kong and I worked from a very young age.  I looked after old people who lived near us.  I also learnt to be a  dress- maker. 

5.I always wanted to have a normal family with a mother and father who loved me.  I was very lonely growing up.  When I was about 15 or 16 the old woman returned to PR China and I stayed in Hong Kong.

6.In 1977 I married my first husband, Jacky To Wai FUNG, in Hong Kong.  Our son, Kerry Chun Yeung FUNG, was born on 12 December 1980.  We traveled to Australia together on 28 October 1982. I have lived in Australia since then.

7.In about 1983 or 1984 Jacky Fong and I separated and he married another person.  We divorced in 1985.  After we separated Jacky Fung did not take any interest in my son or help to care for him.  I looked after my son the best I could by myself, but life for my son and I was very difficult.

8.My second marriage was to Hung Hing LUK.  We were married from 1988 or 1989 to 1992.  He sponsored me to migrate to Australia because he saw how desperate my circumstances were and how hard it was for me to look after my son.  Hung Hing Luk and I were good friends, but we did not live together as husband and wife.  He explained our relationship to the Department of Immigration and my son and I were granted a visa on compassionate grounds.

9.I became an Australian citizen on 24 August 1994.

10.My third marriage was to Wei Zhi Yang on 22 January 1993.  We had a genuine marriage and we got along very well at first.  I was committed to our marriage and we lived together as husband and wife.  I sponsored Wei Zhi Yang to migrate to Australia as my husband and I wanted to have a proper family together with Wei Zhi Yang and my son. 

11.After we had been married for a while I realised that there was a big problem because my son and Wei Zhi Yang did not get along.  They constantly quarreled together and I realised that we could not be a proper family together.  Wei Zhi Yang and I separated in 1995.  I was sad that our relationship did not work out and that I was alone without a partner again.  I did not arrange for our divorce until many months after we separated and our divorce was not settled until 8 February 1997.

12.I met my husband, Shou Hing Ngai, in Sydney in April 1995 at a friend’s party.  After the party Shou Hing Ngai took me home in his car, but his car broke down on the way and we had to wait for the NRMA.  We talked together through the night while we were waiting and I felt very happy talking with Shou Hing.

13.Over the following months our romance gradually blossomed and we continued to see each other.  We fell in love together and our relationship became stronger and stronger.  I asked Shou Hing to marry me and I was very happy when he agreed. 

14.Shou Hing Ngai and I were married at my house in Campsie, New South Wales, on 2 April 1997.  After we were married we lived together as husband and wife at Campsie.  My son lived with us at Campsie and it was a very happy time for us.  Shou Hing cared for my son and that was very important to me.  I remember fondly an occasion in about September 1997.  We had been married for about five months.  My son was sixteen years old.  My son’s school rang to say that he had been injured.  Shou Hing went to the school and piggy-backed my son from the school to the doctor.  Throughout our marriage I have regularly spoken to my husband about my son.  After many years of trying to raise and care for my son as a single mother it has been a great comfort to me to be able to speak to my husband about my son, to discuss matters with him and to know that he cares about my son.

15.After we were married my husband’s appeal to the Minister for Immigration was refused.  He was very disappointed.  I encouraged my husband to leave Australia and apply for a visa from outside Australia.  First of all he had to obtain travel documents to leave Australia.  He left Australia in December 1997.

16.My husband and I have been living apart from each other since December 1997.  It has been extremely painful for us living apart.  I know that in the past my husband did the wrong thing and disobeyed Australian immigration law.  He has admitted his wrong-doing.  He has tried very hard to do the right thing and to co-operate with the Australian Department of Immigration since I have known him. 

17.My husband has tried for many years to apply for a spouse visa for Australia.  It feels to me like we are both being harshly punished for things that my husband did many, many years ago.  Our attempts to put things right have been unsuccessful, but we continue to hope that we can make a new start together in Australia in the future. 

18.My husband and I love each other very much and we always try to support each other and help each other.  We keep in regular contact by phone and I have traveled to Hong Kong to visit my husband many times. 

19.However, despite our best efforts to support each other our separation has damaged us physically and psychologically.  I feel lonely and helpless and I find it very difficult to socialise.  I have not gone to the cinema since my husband left me and I feel ashamed to have eye contact with people. 

20.When I get sick I feel like I am going to die.  I have been to the doctor and the doctor is not able to help me very much.  My husband gets very worried when talking to me on the phone.  He feels helpless being so far away and not able to help me.

21.I often cry and feel dizzy and I do not know why.  Sometimes I cannot eat or sleep.  Many times I find that my heart is racing or my arm is trembling, or that I cannot breathe.  My physical health has gotten worse through the long, hard years of separation from my husband.  I am often sick and my health has got poorer and poorer.  My state of health affects my daily living and my work.

22.I also suffer financially.  I work very hard to support myself.  I have never sought government welfare benefits.  My separation from my husband has cost us a great deal financially, including airline tickets for me to visit him, international telephone calls and keeping two separate households in two countries.  I am finding it harder and harder to get by and I am worried about looking after myself as I get older.  My husband and I have tried to save money for our retirement, but we have not been able to do so because of our modest incomes and many expenses.  I am worried about the terrible life that awaits us in old age if we are not able to save some money. 

23.I am now in my fifties.  I did not have a normal family growing up as a child and I have always wanted to live a normal family life.  I love my husband very much and I hope that we can settle in Australia together.  We both have a very high regard for Australian society and we want to live in Australia together and contribute to this wonderful country.  I hope that the Minister for Immigration and Multicultural Affairs will let me and my husband live together again, just live a normal life like ordinary people and take care of each other for the rest of our lives. 

…

14.     The Applicant works as a seamstress altering clothes at Jenny’s Boutique in Neutral Bay earning, after tax, approximately $600 per week.  She has a 27 year-old son who lives with her and who is employed at a car park near the airport.  (Indications in the evidence as to the Applicant’s son being unemployed refer presumably to other periods of time.)

15.     The Applicant said that the Visa Applicant currently lives in public housing consisting of an apartment on the 28^th floor of a building in Hong Kong.

16.     Mr Karp asked the Applicant whether she would consider living in Hong Kong with the Visa Applicant.  She said that she has never thought of doing so.  When asked why not, she said that she is a legal resident in Australia who enjoys her life in Australia very much.  She said that she has a right to apply to have her husband come and live with her in Australia.  She said also that she had been here for some 20 years, was a taxpayer and that she wishes to draw old age benefits in Australia.

17.     The Applicant said also that she did not think that she could find work in Hong Kong due to her age.  She did not at any time furnish any evidence as to what efforts, if any, were made by her at any time to find work in Hong Kong, and notwithstanding the fact that she has visited Hong Kong many times over the years.

18.     The Applicant said, as regards clause 13 of her witness statement (see paragraph 13 above of these reasons), that she asked the Applicant to marry her.  When asked why she did so, she said that she “loved him and also, that he is very good to my children”.  She in fact has one child only, a son who will be 27 in December 2007.  The Visa Applicant did not suggest marriage to her; she proposed it.

19.     The Applicant said that she encouraged the Visa Applicant to leave Australia to go to Hong Kong in order to bring this partner spouse application.  She was told by an agent that the application had to be made from outside Australia.  In answer to the question as to whether, when he left Australia, he was in Australia legally she said that “I think he had extended with the immigration his stay”.

20.     Mr Karp informed the Tribunal that the Visa Applicant had made two protection visa applications, both of which were dismissed. He indicated that the Visa Applicant was on a bridging visa E which had been granted to enable him to leave Australia..  Mr Karp noted that at no stage did the Refugee Review Tribunal (“RRT”) make a finding of dishonesty again the Visa Applicant.

21.     As to paragraph 18 of her witness statement (paragraph 13 above), the Applicant said that she has visited her husband in Hong Kong on many occasions and usually once a year, but not last year, because this application was in progress.  She said that she could not leave Australia in case she was needed by her legal advisers in connection with this case; (as to whether this latter statement was true is open to doubt; cases such as these proceed slowly and there is seldom any element of real urgency, and certainly nothing which cannot be accomplished by telephone or email and at short notice).  The Applicant has visited Hong Kong sometimes for between 10 and 12 days and sometimes for three weeks or more.  On occasions, the parties have travelled together to Thailand or Japan and there was also evidence before the Tribunal (referred to later in these reasons) as to a trip to Canada.  The Applicant said that she bought her air ticket from Australia to Hong Kong but that her husband, who is “sort of a chauffeur ” bore all other expenses.

22.     The remainder of this Part B relates mainly to the cross-examination of the Applicant.

23.     The Applicant was married to her first husband in 1977; her son was born on 16 December 1980.  The family then came to Australia as tourists and stayed illegally.  The Applicant obtained employment, illegally, in the second year after arrival in Australia and after her visa had expired.

24.     The Applicant’s marital history thereafter was, as appears from her witness statement, somewhat chequered.  Her second marriage was to a man who was a friend of her first husband and whom she met when she first arrived in Australia.  This was not a genuine marriage; she was sponsored by him as a resident.  That marriage ended in 1992 because, so she said, her second husband was already married.  She confessed to the immigration authorities that the marriage was not genuine.  She said that there was a wedding ceremony even though she knew that at the time her second husband had a wife and a daughter, but “he wanted to help me”.  The Applicant said that that marriage ended in divorce; (the Tribunal doubts whether this can be so since the “marriage” itself was bigamous and certainly no divorce papers were produced).

25.     The Applicant next married Wei Zhi Yang who was then a Chinese student studying in Australia.  She had received a residence visa on humanitarian grounds and she sponsored her third husband into Australia.  That marriage also failed.  When asked why they were separated in 1995 but were divorced only in 1997, she answered that neither had found someone else whom he or she wanted to marry.

26.     The Applicant and the Visa Applicant met at a party in April 1995.  Although her witness statement at clause 13 (see paragraph 13 above of these reasons) sets out that her romance blossomed from that time, her oral evidence indicated that it did not.  They kept in contact, so she said, and she met him again some time afterwards, although she could not remember exactly when.  In the interim, there had been telephone contacts between them but as friends only.

27.     It is unnecessary for me to go into detail as to what the Applicant knew of the Visa Applicant’s status.  Suffice it say that she came to know of his previous immigration history and the fact that he had been deported.  She knew also that having been deported, he came back illegally by sea.  She said that he was in correspondence with the immigration authorities.  She knew also that his refugee applications were unsuccessful.  She knew furthermore that he was working illegally in Australia.  She said that she told him that she got into Australia on humanitarian grounds; she did not tell him about sponsoring her third husband into Australia because, so she said, this had nothing to do with him.

28.     The Applicant agreed that she signed the sponsorship application (T p71).  As to question 12, “Did you enter into this relationship solely to gain permanent residence in Australia for your partner?” to which she had answered “no”, she said in her evidence that she had ticked the wrong box.  Subsequently, Mr O’Brien accepted that in fact and notwithstanding her evidence to this effect, she had in fact ticked the correct box.

29.     The Applicant agreed that she had said that she never considered living in Hong Kong.  She again said that she would not be able to obtain work there.  It was put to her that she told Dr Lennings as recently as June 2007 that Hong Kong was impossible because it was too crowded and the “social situation” was unsatisfactory.

30.     When asked where money was found for travel and legal expenses, she said that the Visa Applicant had borrowed money from his employer for legal expenses.  She said also that she has her own money in that, as set out previously, she works for Jenny’s Boutique earning $600 per week after tax and that “when I go back I spend my own money” (contradicting what she had said in evidence-in-chief, and as to which see paragraph 21 above).  She said that the Visa Applicant, by contrast, works only on a part-time basis; his employer is also his friend and he, the employer, Lei Tak Meng (“Tak”), has lent him sums for legal expenses.  The Applicant agreed that this man is the person who furnished the statement which appears at ST p219; (the Tribunal notes that a claim that Tak would lend money to fund legal expenses designed to bring the Visa Applicant back to Australia and in consequence of which recovery would be difficult if not impossible might be thought to be inherently unlikely).

31.     The Applicant wrote a letter to the Department of Immigration and Multicultural Affairs on 2 October 2003.  It appears at ST pp220-221 and reads (verbatim) as follows:

Dear Sirs,

I was introduced to my husband, Joseph Ngai Shou Hing, at the Easter party in Sydney in 1995.  At that Easter holidays, I went with another friend to participate a party at my friend’s home.  The party ran until very late that night and Joseph offered me a ride in his car.  During the trip, we got along very well and exchanged contact numbers.

We did not contact each other for some time after the party because we were both busy at work.  One day, I met Joseph again at the market closed my home in Campsie.  Joseph helped me carrying the food and I took the chance to invite Joseph to my home for dinner.  Since then, we met often.  We traveled around Australia during the holidays to places such as Woy-Woy, The Entrance, Nelson Bay … etc.

In Aug 1996, we took a break from work and toured around Tasmania for 10 days.  We then decided that we would get married in April 1997 during the school holidays.  After the marriage ceremony, we went to Cairns for the honeymoon.

In December, 1997, Joseph made an important decision to go back to Hong Kong to apply for immigration.  He thought that it is for the benefit of the family (my son and I) to gain his citizenship in compliance to the Australian immigration policy.

In 98-99, Joseph’s first attempt of the application was rejected.  We have tried to appeal but were unsuccessful again.  Without any other choice, I came to Hong Kong each year to visit my husband.  Since Joseph’s return to Hong Kong, we have traveled to many places together to enjoy our short but valuable union.  We went to Japan in 2000, we traveled to Thailand in 2001 and we visited our friends in Vancouver in 2002.  This Sept, I came to Hong Kong to celebrate Joseph’s 50^th birthday.

During our marriage for 6 years, my husband and I always live apart from another.  It is not fair for me because it is normal for a wife to expect her husband to stay by her side, to take care of the family and share all the responsibility and happiness.  Six years for youngsters may not mean too much but for someone in their 50’s, it is much more precious because who knows how long we can enjoy our life.

I hope that we can have a fair trial for this application and I sincerely hope that may husband can come to unite with my son and I as soon as possible.

Please do not hesitate to contact me if you have any question.

Yours faithfully

(The Tribunal here notes that although the Applicant had referred to travel with the Visa Applicant to Thailand and Japan, that letter referred also to travel to Vancouver.)

32.     In clause 20 of her witness statement (at paragraph 13 above), the Applicant said that “When I get sick I feel like I am going to die”.  Cross-examination as to her health indicates that she suffers from an inner ear difficulty; a tumour on her breast has turned out to be benign and Dr Lennings referred to a thyroid tumour.  The Applicant said that her physical condition has worsened over the years of separation from her husband.

33.     The Applicant said that as regards information provided to Dr Lennings (and referring to his longer report) that she was left, as a child, in the care of an elderly neighbour who was not a relative; as to being abused, she said that this was a reference to her being bullied by other children.  She had told Dr Lennings that she had difficulty in making friends.

34.     The Applicant said that although she was depressed, she had not sought medical advice for that condition either from her general practitioner, Dr Ang, or any other medical practitioner.

35.     It was put to the Applicant that she knew that when she married to Visa Applicant that there was a possibility that he would not be allowed to come back to Australia.  She answered that “I knew he will be back [in Australia]”.  When it was put to her that this application might fail, she said “I would take further legal actions for him”.

36.     Referred to clauses 12 and 13 of her witness statement (paragraph 13 above of these reasons), the Applicant accepted that there was a period of time when she and the Visa Applicant did not see each other, but that they then met again; (these clauses do not accord with the second paragraph in the letter at ST p220 (and see paragraph 31 above of these reasons).

37.     The Applicant said that she has been consulting Dr Ang for one to two years or perhaps a little over a year.

PART C - the evidence of dr lennings

38.     Dr Christopher John Lennings is a psychologist who has seen the Applicant but briefly only.  His reports dated 24 January 2006 and 20 June 2007 are annexed to Exhibits A1 and A2 respectively.  The longer and more detailed report dated 24 January 2006 (Exhibit A1) is included (but in part only) in these reasons as follows:

Dear Ms. Kinslor

1.Thank you for your referral of Mrs. Lisa Poon whom I saw on the 20/1/2006 for 75 minutes.  I interviewed Mrs. Poon in the company of her god-daughter Miss Nancy Lin as Mrs. Poon has some ability with receptive English but her expressive English is quite poor. Mrs. Poon says that she was going to have her son come with her to interpret however her son’s Cantonese is not good enough to act effectively as an interpreter in a psychological assessment. Mrs. Poon appeared to be open and co-operative with me in the assessment.  In addition to my interview with her I had available to me your letter of instructions and also acknowledged you had provided me with a copy of the general direction number 21. I also had available to me the Migration Review Tribunal Decision Record by the presiding member Patricia Leehy dated 1/8/2005, and I also had a note from Mrs. Poon’s GP Dr Ben Ang dated 27/11/2005.

2.Report Author.  I am a clinical psychologist with a Masters degree in Clinical  Psychology and a Ph. D in research on personality …

3.Understanding of the Situation.  My understanding of the situation is that Mrs. Poon is married to Mr. Ngai and married him in 1996.  At that time Mr. Ngai had been an illegal immigrant in Australia and after marrying in April in September he moved back to Hong Kong in order to apply for entry on a spouse visa.  However the Department of Immigration identified Mr. Ngai as a person of bad character given his entry into Australia previously in an illegal manner.  Since then Mrs. Poon has been attempting to have the Department and the Minister review those decisions and the current appeal is in relation to her ongoing attempts to be reunited with her husband. I understand you are requesting of me to make some comment upon the impact of the enforced separation between Mr. Ngai and Mrs. Poon and any consequences that might be held for her future.

4.Assessment of Mrs. Poon.  Mrs. Poon is the only child of her parents and she was born in China.  She reports an extremely difficult childhood.  Apparently when she was very young her parents decamped to Canada and left her in the care of an elderly relative. However, the parents died whilst they were in Canada – it is unclear as to whether there was ever any intention to bring their child over to them; the impression I gained from Mrs. Poon was that she effectively had been abandoned by her parents.  She lived with this elderly person in China until approximately she was ten to eleven years old and then with this elderly person moved to Hong Kong.

5.Mrs. Poon is a little unclear as to the reasons why her guardian moved; it seems that in part her guardian’s age was such that she wished to go to Hong Kong because apparently she could be more independent there.  Also at the time the Red Guards were beginning their rampage through China and this political instability may have had some impact upon decision making.  Whatever the case Mrs. Poon who had been enrolled in primary school in China when she went to Hong Kong at around about the age of ten or eleven was forced to fend for herself obtaining employment as essentially a carer to other elderly people in Hong Kong.  Mrs. Poon’s education ceased at that point.  She said she did attempt some evening school classes but was not particularly consistent in her attendance as might be expected from a very youthful child. 

6.Mrs. Poon reports enduring considerable abuse as a child when living in China. She had some difficulty in expressing herself about that abuse. Because of the sensitivity associated with her god daughter being an interpreter I did not press her on the details of that abuse, suffice it was obvious in the interview that her memories of those events was extremely disturbing to her.  Mrs. Poon told me that as a teenager she made few friends and it wasn’t until she became in effect an adult that she became more sociable.  She reports that she married when she was in her early twenties and had a child by that relationship.  Together she and her husband applied to come to Australia which they did in 1983 but the marriage did not last. She discovered her husband was being unfaithful to her and they separated in 1985.  She is now divorced from that man. 

7.Mrs. Poon reports working throughout her period of time in Hong Kong largely in the clothing and millinery trade.  She says that the only time she did not work in Hong Kong was when she was pregnant with her son.  She describes a good relationship with her son and appears to be very caring of him.  The son is currently aged about 25 years and continues to live at home although he does have a girlfriend who is also of Chinese background.  Apparently the house they live in is jointly owned by Mrs. Poon and her son.

8.Mrs. Poon tells me that after coming to Australia she continues to work (she said “too much”) and has been employed throughout her period here in the millinery and clothes making field.  Currently she’s working on a casual but apparently more than full time basis at Neutral Bay. 

9.Medical History.  Mrs. Poon tells me she has a number of medical problems and I note the medical report provided by Dr Ang.  In particular she has a number of muscular-skeletal difficulties and high cholesterol and appears to suffer from a range of symptoms that might indicate the presence of an inner ear disease such as Meniere’s . These includes tinnitus, dizziness and nausea for which she has PRN Stemetil as a treatment.  I note that no diagnosis of Meniere’s has been made but nor has she been referred to an ENT and it may well be that such diagnosis would be made were she to seek appropriate medical attention.  I also note that the doctor is treating her for a number of other complaints including a sleep disorder.  Mrs. Poon tells me that some time ago she was diagnosed with a tumour in the region near her upper breast.  Apparently this tumour is benign but she requires it to be monitored to insure it does not turn cancerous.  She also reports having been treated in the past with what I think is a thyroid tumour although it was difficult to make sense of the description of symptoms that she gave.  She said she used to have to take medication for it but no longer does so.  It is clear that Mrs. Poon has a increasing level of medical difficulties as she ages for which she is going to require ongoing support.  At the moment she is still mobile and continues to drive and she says that her dizziness attacks do not interfere with her driving but if it is the case that she has Meniere’s disease it may well be that at some point she will find it very difficult to continue driving safely because of the possibility of a dizzy attack whilst driving. 

10.Mrs. Poon describes a number of symptoms consistent with both mild depression and mild anxiety. She tells me she is not being treated for such conditions and she appears to be somewhat resistant to the notion that she should take medication, which would be the normal front line treatment provided by a GP in such instance.  Mrs. Poon reports no history of alcohol abuse of any nature nor, she says, does she ever use illicit drugs nor does she gamble.

11.Relationship History.  Mrs. Poon reports four marriages, the first occurred when she was living in Hong Kong in her early twenties and this lasted for almost eight years.  She has a son from this relationship.  She reports that her son is a good child and is a person who can be exasperating to her but nonetheless there appears to be a lot of mutual love and regard.  According to her god-daughter the son is a nice man who is supportive and caring of his mother, although has his own interests as well.  The son used to work but only recently has ceased employment. I am not altogether sure what his long term employment aspirations may be.

12.Mrs. Poon’s second marriage occurred about two years after her divorce from her first husband.  She said that at that stage she had been living with a friend and she married this person.  She says that the Department of Immigration took the view that this was not an official or proper relationship and required that the couple separate.  Mrs. Poon says that they did so however, no further action was taken by the Department of Immigration.  She said that her third marriage began with a man whom she quite liked and she said was a good man however her son took a great objection to this man and as a consequence that marriage became untenable and broke down after about three years.  Mrs. Poon said that all her life what she’d really wanted to have was a “proper family”, having been deprived of one herself as a child and it was a great sadness to her that that relationship broke down. 

13.She tells me that she met her current husband Mr. Ang in 1996 at a friend’s party and they courted for approximately one year.  They were married in April 1997 and Mr. Ang then left for Hong Kong in December 1997 to apply for a visa.  It is apparently a matter of great distress to both parties that he was unable to get a visa.  Mrs. Ang reports a genuine and deep relationship with her husband; she tells me that in the last eight years that they have been apart she has been extremely saddened by the separation and has visited her husband on ten occasions over those eight years.  She also reports ringing her husband almost daily except for weekends (that is when her husband’s work is at his busiest and so they are unable to communicate on the weekends).  Mrs. Poon's husband is apparently a motor mechanic and has good English skills and used to drive taxis in Sydney, however, he only has part-time employment in Hong Kong and is unable to substantially contribute to her finances.  Mrs. Poon says that although she pays for her airline ticket to visit her husband when she’s living with him in Hong Kong he pays all of her expenses there. 

14.Mrs. Poon described feeling extremely depressed that she was unable to be with her husband and said that although she has a small group of very close friends she nonetheless feels somewhat distant from them and only really has a genuine warm and deep relationship with her husband. 

15.Mrs. Poon told me that if her husband were able to return to Australia she would be extremely happy and she would view that as a good thing. She believes that her mood would improve and not only that, that she would have more support both in terms of her economic difficulties but also in terms of her concerns about her increasing health issues.  It needs to be noted that Mrs. Poon does have realistic and genuine health issues and these are likely to increase in impact on her as she ages.  At the moment her son is able to provide a measure of support to her but it is likely that at some point in the future it can be expected that he will seek to have some kind of independent living.

16.Psychological Assessment.  Mrs. Poon describes a raft of symptoms that appear to be suggestive of depression.  She told me she gets sad sometimes when she feels particularly sick and does not have the support of her husband.  She described at times sitting down and feeling like she wanted to cry or indeed crying for no obvious reason.  She said it was because she felt she had no energy, and lack of energy is a cardinal symptom of depression.  I note that when I asked her god daughter about this in a separate interview the god daughter told me that she saw Mrs. Poon as constantly complaining of lack of energy and it seems that Mrs. Poon somatacizes her depression.  Mrs. Poon describes some instability in her mood with mood fluctuations throughout the day, although she says that this occurs only when she thinks about her problems: in particular her absent husband. Otherwise thinks she has good emotional control.  Throughout most of the interview with me she did exert good emotional control and it was only primarily when I was asking her questions about her life in China and the abuse that she suffered there that that control slipped. 

39.     Dr Lennings report was based entirely on what he was told by the Applicant and then through her goddaughter as interpreter and because she has so little English.  Some of the matters recorded by him are not accurate.  In particular, and by way of one example only, the reference to Mr Ang in clause 13 (paragraph 38 above of these reasons) is plainly erroneous.

40.     Dr Lennings said that the Applicant is not being treated for some conditions.  When asked if she should be referred to a specialist, he said that this was not necessarily the case and that a general practitioner might suffice.  He said that clearly enough she would like to be with her husband.  He knew nothing of her husband’s visa difficulties.

41.     In essence, Dr Lennings agreed that many of the Applicant’s symptoms (and especially depression) were consistent with the background of a difficult childhood and that childhood factors are fundamental in relation to stress, although it is very hard to say what particular illness is referrable to any particular stress element.

PART D - the evidence of the visa applicant

42.     The Visa Applicant said that he is a casual driver.  His evidence in chief consisted to a large extent of his witness statement which is set out at T pp161-167 and reading (verbatim) as follows:

I, Shou Hing Ngai of … Hong Kong, do hereby solemnly declare and affirm that:

1.I was born on 30 September 1953 in Macassar, Indonesia.

2.My Indonesian name and the name entered on my Indonesian birth certificate is the name “Goei Soei Kheng”. 

3.In 1958 my family moved to the People’s Republic of China (PR China).

4.After my family moved to China I was given the name “Shou Hing Ngai”.  This was the name on my Hong Kong Certificate of Identity. 

5.I lived in Hong Kong form 1969 to July 1981. 

6.The first time I came to Australia was in August 1981.  I cannot remember the exact date that I arrived.

7.I traveled to Australia as the holder of a Hong Kong Certificate of Identity.  I had a one-month visitor visa for Australia.  I traveled to Australia by aeroplane and arrived at Sydney airport.

8.My travel documents, including my Hong Kong Certificate of Identity containing my Australian visa were stolen in the early 1982s.  I have a copy of my ex-wife’s visitor visa.  The name of my ex wife is Lo Yin Mee.  We both applied for and were granted visitor visas for Australia in 1981.  Annexure A is a copy of my ex-wife’s visitor visa.  She did not travel to Australia on this visitor visa.  I came to Australia without Lo Yin Mee in 1981.

9.After my visitor visa expired I remained in Australia without a visa or entry permit.  I lived and worked in Australia over the next few years because I was very unhappy with my life in Hong Kong.

10.I was detained by immigration officers on 17 January 1985 because I had overstayed my visa.  I was interviewed by immigration officers after I was detained.  I deny that I told the immigration officers that I had entered Australia by “jumping ship”.

11.When I was detained I was placed in Townsville prison.  I was scared and depressed.  I admit that while I was in Townsville prison I wrote a letter to the Minister of the Department of Ethnic Affairs dated 8 February 1985 in Chinese characters.  I admit that the letter contained a statement in Chinese along the lines of “even though I should be deported from Australia I shall try to come back again by whatever means.  I understand that some underworld society people may be able to help me in this way”.  I am embarrassed to read this statement now.  I now have a very different attitude from what I said in 1985.  I have for many years tried to obtain a visa to Australia through proper means.  I do not intend to use any unlawful means to get to Australia.

12.I was deported from Australia to Indonesia on 1 March 1985.

13.When I was deported I had a fifteen-day visa for Indonesia.  After I had been in Indonesia for fifteen days I was placed in an immigration detention camp by the Indonesian authorities.

14.I contacted the British Consulate and I obtained a travel document for entry to Hong Kong.  Then I traveled to Hong Kong.

15.When I reached Hong Kong in 1985 I found that I could not obtain a Certificate of Identity in Hong Kong at that time.  When I saw my former ex-wife, Lo Yin Mee, in Hong Kong she told me that she did not want to know me anymore and that she was going to organise for our divorce.  Although I had not seen my wife for a long time I was very upset about our marriage breakdown.  I could not find work to support myself in Hong Kong when I returned in 1985.  I had no home.  I had been detained in Indonesia, the land of my birth.  In Hong Kong I had no work and I was rejected by my ex-wife.  I was utterly depressed and I wanted to escape from my situation.

16.I decided to try to return to Australia.  One of the people I had been detained with in Cairns had a friend who worked for a Hong Kong shipping company.  When I found him in Hong Kong I asked him to arrange for my passage to Australia.  He got me a place on a container ship traveling to Australia and I paid him Hong Kong $40,000.  I made a private arrangement with a person I met in Australia to board a ship for Australia without travel documents or an Australian visa. 

17.The name of the ship I traveled to Australia on was Ocean Pacific.  The ship docked in Sydney near Glebe on about 30 August 1985.  I had no travel documents and no visa with me on that occasion.  I got off the ship in Sydney.  I walked through the shipping yard and into the Australian community without being questioned.

18.After I returned to Australia in 1985 I lived and worked in Australia over the next few years without contacting the Australian immigration authorities.

19.I am ashamed of my behaviour in entering Australia illegally and disobeying Australian immigration law.  My difficult circumstances at that time do not excuse my behaviour.  I was wrong to travel to Australia without a visa and to live in Australia without a visa.  I am sorry for what I did.

20.In 1990 I identified myself to the Australian immigration authorities.  I applied for humanitarian visas in Australia.  My visa applications were refused.  My last application for a humanitarian visa was refused by the Refugee Review Tribunal on 5 January 1996.

21.After my application visa applications were refused I appealed to the Minister for Immigration to let me stay in Australia.

22.I first met my wife, Liza Siu Yin Poon, in April 1995 at a party.  We met again after a few months and she invited me for dinner.  I really liked Liza and I enjoyed being with her, but I was concerned about being in a relationship because I did not have a permanent visa for Australia and I did not know whether I would be able to stay in Australia.

23.I told my wife about my immigration problems in 1996 and she said that she still wanted to be in a relationship with me and that we could work things out together one step at a time.

24.In 1996 we traveled through Tasmania together. 

25.My wife proposed to me and I accepted her proposal.  I wished that I could offer her more, such as a stable home.  I did not know what the future held for us, but I knew that I loved her and that I would try to be a good husband to her.

26.On 2 April 1997 I was married to my wife. 

27.I told the Minister for Immigration that I was married.

28.On 27 June 1997 the Minister for Immigration wrote to me a letter saying that he would not allow me to remain in Australia (the Minister’s letter).  I was very sad when I received this letter.

29.I discussed the Minister’s letter with my wife and we were very upset because we knew that we would be separated from each other.  My wife encouraged me to make arrangements to leave Australia straight away and apply for a spouse visa from outside of Australia.

30.I attended the Bankstown office of the Department of Immigration in July 1997 and an immigration officer told me to apply for a travel document so that I could leave Australia.

31. On 22 July 1997 I sent a letter to the Consulate General, Indonesia, requesting a passport.  On 22 July 1997 I also sent a letter to Consulate General, China requesting a Chinese passport.

32.I kept in regular contact with the Department of Immigration while I was making arrangements to leave Australia and I applied for several bridging E visas to be lawfully in Australia while I made arrangements.  I have seen a copy of my bridging E visa application form signed by me on 12 September 1997.  At question 8 the answer to the question, Why did you now depart Australia before the expiry of your visa? is “marriage break down”. This answer refers to my first marriage to Yo Lin Mee.  The immigration officer helped me to fill out my application for a bridging E visa.  The immigration officer asked me why I had stayed in Australia for so long and I said that I was unhappy with my life outside of Australia and that my marriage had broken down and the immigration officer told me to write “marriage break down” at question 8.

33.After I received a Chinese passport I made arrangements to leave Australia.  I left Australia on 12 December 1997 and I have not returned to Australia since that time.

34.On 12 April 2003 I completed and signed form 47SP, which is part of my spouse visa application.  I completed the form myself and did not have any assistance from a migration lawyer.  I now realise that I made some mistakes in answering the questions on the form. 

35.Question 6 of form 47SP states, “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?”.  I ticked “Yes” to this question.  I confirm that “yes” is the correct answer to this question.  I did not intend to mislead the Department of Immigration through my answer.

36.On 13 May 1991 I was refused an Extended Eligibility Temporary Entry Permit. 

37.On 26 October 1992 I was refused a refugee visa by the Department of Immigration and on 26 June 1994 the Refugee Review Tribunal refused my appeal.

38.On 18 July 1994 I was refused a Domestic Protection (Temporary) entry permit, a Protection (Permanent) entry permit and a (Processing) entry permit.  I lost my appeal to the Refugee Review Tribunal against those decisions on 4 January 1996.

39.Question 7 of form 47SP states, “Have you held, or do you currently hold a Bridging Visa E?”.  My answer to that question was “No”.  That answer is incorrect.  I do not know why I ticked “No” to that question because I held Bridging E visas prior to my departure from Australia in 1997.  I did not intend to mislead the Department of Immigration, who were aware that I had Bridging E visas in Australia.

40.Question 52 of form 47SP states, “Has your partner previously been married or been in a de facto or interdependent relationship?”.  I answered “yes” to that question, which is correct.  I admit that I failed to write down the details of all of my wife’s previous relationships.  I knew that it was very painful for my wife to talk about her previous relationships.  When I completed the form in 2003 I did not want to upset my wife by asking her questions about all of her previous relationships, which I considered to be in the distant past and not relevant to my spouse visa application. 

41.My wife had three marriage relationships before our marriage.  The first was with Jacky To Wai Fung.  She has one child, Kerry Chun Yeung Fung, from this relationship.  My wife’s second marriage was with Hung Hing Luk.  My wife’s third marriage was with  Wei Zhi Yang.  My wife explained about these relationships to the Migration Review Tribunal.

42.At question 67 of form 47SP I answered “No” to the question “Have you… ever left any country to avoid being removed or deported?”.  This answer is correct.  I was deported from Australia in 1985.  In 1997 I left Australia voluntarily as the holder of a bridging E visa.  I did not intend to mislead or deceive the Department of Immigration in answering this question on form 47SP.

43.At question 67 of form I answered “No” to the question “Have you… been involved in any activity, or been convicted of any offence, relating to the illegal movement of people to any country (including Australia)?  I cannot recall how I interpreted this question when I filled out my form in 2003, but I did not intend to mislead or deceive the Department of Immigration in answering this question on form 47SP.  In 1990 I told the Department of Immigration that I entered Australia illegally in 1985.  I describe how I entered Australia in 1985 in this statement.  I have never denied that I entered Australia illegally in 1985.

44.Question 14 of form 47SP requests “Other names you are, or have been, known by”.  I have written “Joseph”.  I admit that I have also been known by the name Goei Soei Kheng.  This is the name of my Indonesian birth certificate.  When I answered the form in 2003 I had not used or been known by the name Goei Soei Kheng for many, many years and I did not realise that I should have written down that name.  I now understand that I should have written down the name Goei Soei Kheng.  I admit that I made a mistake.  I did not intend to mislead or deceive the Department of Immigration in answering question 14 of form 47SP.

45.At question 22 of form 47SP I have answered “No” to the question “Have you previously been married or been in a de facto or interdependent relationship?”.  My answer is incorrect.  I do not know why I ticked the wrong answer to this question.  I found the form 47SP long and confusing and English is not my first language.  I did not intend to mislead or deceive the Department of Immigration in answering question 22 of form 47SP.  I included with my spouse visa application my divorce certificate and divorce papers for my previous marriage to Yin Mee Lo.

46.It has been very painful for me to be separated from my wife for over eight years.  We speak to each other by phone and she has visited me many times, but it is extremely difficult living apart on a daily basis.  I know that my wife is unwell and that she feels tremendous stress from our separation.  I feel so helpless being separated from my wife.

47.I love my wife and I want to live with her in Australia where she can be near her son.  I hope to one day be permitted to travel to Australia to be with her.  I have applied for a spouse visa because I want to live with my wife in Australia.  I will continue to request that I be granted a spouse visa to travel to Australia, but I will not seek to enter Australia without a valid visa.

And I make this solemn declaration conscientiously …

43.     The Visa Applicant said that he completed high school in Macau having been educated for about eight years.  He learned English in part at school but much more so while in Australia over a number of years.  He said that he could read English but only to a limited extent.

44.     The Visa Applicant said that he wanted to leave Hong Kong because he was unhappy there.  He obtained visas for himself and his then wife, but he only went to Australia.  He said that he came as a tourist but then decided to stay in Australia.  Some years later and after he was deported from Australia, he came back to Australia as a stowaway.  When asked when he decided to return to Australia, he said in examination-in-chief that he did not decide this aspect at all, but that a friend did so and he merely agreed.  He did not know the full name of that friend, but said that one name of that friend’s name is “Kong”; (the Visa Applicant very often did not know the names of persons referred to in his evidence).

45.     The Visa Applicant said that he identified himself in 1990 to the authorities because he wanted to legalise his situation.  He agreed that he completed a number of forms; a friend, so he said, wrote them out for him.  When asked whether the same person filled in all the forms, he said that different people did so on different occasions.

46.     When asked who filled in certain of the forms he generally said that he could not remember the name, although he did refer to a social worker in respect of some of them.  He thought that a social worker filled in his refugee application in October 1990 (ST p99-130).  When asked who completed the second refugee application in 1996 (ST p191-212), he said that he could not recall.

47.     As to the visa application made in 2003, he said that Tak wrote it for him.  He said that he told Tak what to say.  When asked whether he read the form he said that he and Tak read it together.

48.     When asked the extent to which he understood the printed questions in the form he said that he thought he understood almost half and just believed what Tak said to him.  When asked what he said or did if he did not understand the question, he said that he did not remember, and that in some cases he had ticked the wrong box.

49.     The Visa Applicant said that there would be no work for his wife as a seamstress in Hong Kong.  He said that she came to Hong Kong every year and knew what was happening in Hong Kong in her area and that there were not jobs of the same type and level as she was doing in Australia.  When asked to elaborate he added that “because she has left Hong Kong for such long periods of time … it is difficult for her to get a job.  She has to start from scratch”.  He said also that she is not prepared to leave her son.  When it was put to him that she would not give up Australia even for him, he agreed.

50.     Mr Karp referred the Visa Applicant to ST p226, which is a certificate to the effect that he has no criminal convictions in Hong Kong up to the date of that certificate.

51.     The remainder of this Part D relates in the main to the cross-examination of the Visa Applicant.

52.     The Visa Applicant agreed that he travelled to Australia in 1981 as the holder of a Hong Kong Certificate of Identity valid for one month.  His ex-wife did not accompany him because they had differences of opinion and arguments.  His daughter was born thereafter.

53.     The Visa Applicant said that in the third week after his arrival in Australia, he still had conflicts with his ex-wife.  Because of these differences, he decided to stay in Australia and did so for years, working illegally until caught and detained.  He started work (illegally) within one or two months after his arrival.  (The Tribunal here notes that it is probably reasonable to infer that he came to Australia intending to stay in Australia from the outset.)

54.     It was put to the Visa Applicant that when he was detained in 1985 he said (ST p1) that he had “jumped ship”.  His reply was that he came by air.  It was then put to him that he gave his name as Goei Soei Kheng and he answered that this was the name on his birth certificate.  The Visa Applicant agreed that except for giving his name and date of birth, he refused to co-operate with the authorities.

55.     It was put to the Visa Applicant that in paragraph 11 of his witness statement (paragraph 42 above of these reasons), he admitted that he wrote to the Minister by letter dated 8 February 1980 declaring he would try to return by whatever means and including the use of underworld figures.  He answered, “Yes”.

56.     When asked what underworld people would help him and what he meant by that statement, he said that he was confused and agitated.  The Visa Applicant agreed that he said in his witness statement that he was embarrassed by that statement in his letter but he also agreed that, notwithstanding his embarrassment, he did in fact act in accordance with that promise of return.

57.     The Visa Applicant said that after his deportation back to Indonesia, he did not escape from the immigration detention camp but applied to the British Consulate to be returned to Hong Kong.

58.     Mr O’Brien asked the Visa Applicant whether clause 15 of his witness statement (paragraph 42 above of these reasons) was correct.  He agreed that it was and it was then put to him that in accordance with clause 16 of his witness statement, he had said that he decided to return to Australia.  He agreed that this was so.  Mr O’Brien then pointed out that he had said to Mr Karp in evidence in chief that a friend had made this decision.  The Visa Applicant said that the decision was his.

59.     The Tribunal notes that the Visa Applicant's daughter was born after his first arrival in Australia; there was in fact virtually no evidence of any kind as to his daughter during the course of the proceedings.

60.     Mr O’Brien then asked the Visa Applicant a series of questions as to statements in various forms and documents which were either untrue or inaccurate.  As regards ST pp113-116 being part of a refugee application:

Question 68 asks whether he or any member of his family had ever been arrested, detained or imprisoned.  The first sentence of his answer reads (verbatim) as follows:

I have been arrested once for overstay of visa Townsville North Queensland Australia.  …

Question 69 asks whether he or any member of his family had ever suffered torture, mental or physical mistreatment.  The first sentence of his answer reads (verbatim) as follows:

My father and mother and myself experienced tremendous anxiety and stress due to the revolution in Indonesia.  …

Question 70 asks whether he or any member of his family had ever been subjected to interrogation or questioning.  His answer (verbatim) was:

In December 1984 I was interrogated by the Immigration Department (Federal Police) Townsville North Queenslands (Cairns) Australia.  In place of employment Lang Nam Chinese restaurant Cairns.  The authorities requested to see my personal papers.  They obtained information by reviewing my documents.  I was treated respectfully.  Wanted to know personal identification as my papers were stolen (travelling documents) I could not present them.  Then a search was made of my residence.  A photo copy of my birth certificate was held by the Department of Immigration.

Question 71 asks whether he or any member of his family had ever been denied common rights like work or education.  His answer (verbatim) was:

Because political unrest Indonesia and China (communist) presented little opportunity to study in Macau where the family resided for seven years.  Matters improved slightly.

61.     Mr O’Brien put it to the Visa Applicant that he was applying for refugee status in Australia and that his answers in particular to questions 68 and 70 (and see paragraph 60 above) had nothing to do with that application.  The Visa Applicant agreed that this was so.

62.     In 1996, the Visa Applicant again applied for a protection visa.  Question 2 (ST p191) asked whether he had ever applied previously and the Visa Applicant answered (untruthfully) “No”.  The Visa Applicant said that he did not recall that this was so.  He agreed, however, that his answer was incorrect.  He also agreed that his answer to question 3 reading “Has any person named in Question 1 [Details of persons included in this application in which the Visa Applicant named himself] previously made any other type of application to the Department of Immigration and Ethnic Affairs?” and to which the Visa Applicant answered “No”, was also incorrect.

63.     Over an objection by Mr Karp, the Visa Applicant was asked whether he remembered the interview with Mr T Menetrey in Hong Kong referred to at ST p238, he said that he did remember, but did not recall whether he was asked if the application was bogus.  The Visa Applicant then said that he disagreed that he had ever been asked the question and he did not recall saying to Mr Menetrey that such an application (that is, a protection visa application) was his only option.

64.     Mr O’Brien said that there were other such aspects about which he did not intend to cross-examine in detail.  The Tribunal here notes that it had indicated to Mr O’Brien that an exhaustive cross-examination of each and every single such instance was probably unnecessary.

65.     The Visa Applicant did agree that his second protection visa application was rejected and by which time he had met the Applicant.  He agreed that he told her of his difficulties and he agreed that the question of their marriage and sponsorship of him were discussed.  He said also that it was she who proposed and that he accepted her proposal.

66.     The Visa Applicant agreed that he had been prompted to go to Hong Kong to make the application.  He obtained bridging documentation in order to leave Australia but although that bridging documentation contained prohibitions against work in Australia, he continued to work illegally in Australia right up to December 1997 when he returned to Hong Kong.  Put in other words, the Visa Applicant did not heed the conditions contained in the bridging documentation; it is unnecessary to detail all of the various bridging documents given to him.

67.     The Visa Applicant said that all travel costs and all legal costs incurred by the Visa Applicant and the Applicant were shared.  He works on a casual basis as a driver earning on average less than $1,000 per month; (this assumes an exchange rate of seven Hong Kong dollars for one Australian dollar).

68.     Further cross-examination as to the visa application resulted in further discrepancies and in particular even more “I don’t recall” answers.  It was never clear who completed what forms and when and why some boxes were ticked erroneously or untruthfully.  It became clear that in some cases, questions were answered in a manner which was altogether inadequate.  See in particular questions 6 and 7 in respect of the current application form.  Question 6 at T p72 asks “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?” and he answered “Yes” and the details he gave were simply that he “overstayed”.  Question 7 (at T p73) asks: “Have you held, or do you currently hold a Bridging Visa E?” to which he answered (untruthfully) “No”.  The Visa Applicant said that he did not recall making these entries but agreed that they were incorrect.

69.     Question 67 (T p80, dot point 4) asks whether he had ever been removed from any country including Australia to which he specified (although the question called for detailed answers) simply that he had “overstayed”.

70.     I do not propose to deal with the re-examination of the Visa Applicant, which in my view did not add anything.  When he was asked to what extent he had understood questions in the forms, his answer was that he did not know how to answer.

71.     Put in summary form, the evidence of the Visa Applicant was in many respects singularly unsatisfactory and certainly untruthful.

PART E - analysis of the evidence and the character test

72.     The Applicant’s evidence was not, in all respects, satisfactory.  It was unsatisfactory, in particular, in relation to how she came to be involved with the Visa Applicant.  As to the possibility of her joining him in Hong Kong, her attitude was that she was entitled as of right to have the Visa Applicant with her in Australia and she would, if necessary, take further legal action.  There have been so many applications, all equally unsuccessful, that it is hard to understand why the Applicant would wish to spend money on so futile a purpose, more particularly as she is not a woman of means.  But the very real possibility of endless applications, with all of its inconvenience and cost, in the future cannot be discounted.

73.     As is so often the case in matters of this nature, the financial details were impossible to follow.  On their combined earnings, as furnished by each of the Applicant and the Visa Applicant, they cannot possibly afford to live and also to travel to countries as expensive as Japan (leaving aside travel to various other countries), and in addition fund the legal costs of the many applications over the years.  The evidence on this aspect cannot be accepted and indeed is impossible to reconcile.

74.     Mr Karp said in relation to Exhibit A3 that it indicates that the manufacturing industry in Hong Kong in respect of garments has declined because jobs have been exported to China.  This may be so in respect of factories, and in other words the manufacture of clothing on a large scale basis, but this is not what the Applicant does.  She is a seamstress who works in a boutique in Neutral Bay, altering clothes.  This is very far from the concept of machine labour in a factory, and there is no evidence at all to suggest that there is shortage of work in her area.  As indicated previously, she has been in Hong Kong on many occasions and there was no evidence whatever that she has ever sought to obtain work in this area.  In fact and on her evidence, she would never have done so because she is entirely adamant about her intention to remain in Australia.  That this is so is understandable, but at the same time it does not furnish evidence that work for her in her particular line of expertise in Hong Kong is not available.

75.     The Visa Applicant has quite plainly made entry into Australia a lifelong endeavour.  For nearly 30 years, he has been seeking unsuccessfully to gain entry into Australia by fair means or foul and usually the latter, and he has treated Australia’s immigration laws as if they did not apply to him and with a degree of disregard, which cannot be treated as otherwise than very serious.  Untruthful answers in applications are a part only of the whole picture; after being deported he simply stowed away to get back to Australia, only to be forced out again.  The penalties prescribed are such that his offences fall within the very serious category.  There is no doubt in my mind that he fails the character test.  I note in this context that the position was not improved by the nature of his evidence (often dubious) before the Tribunal.

PART F - direction - visa refusal and cancellation under section 501 - no. 21 (“the Direction”)

76.     Direction – Visa Refusal and Cancellation under Section 501 – No. 21 (“the Direction”) provides guidance to decision-makers in making decisions to refuse a visa under s 501 of the Act. The Direction is binding on this Tribunal.

77.     In this Part F, references to numbered clauses refer to numbered clauses in the Direction.

78.     The primary considerations are set out in clause 2.3 as follows:.

PRIMARY CONSIDERATIONS

2.3In 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.

79.     Clause 2.3 must be considered in conjunction with clause 2.5 reading as follows:

Protection of the Australian Community

2.4…

2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a)the seriousness and nature of the conduct;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

80.     The fact that if the Visa Applicant is granted a visa will mean that he need not re-offend does not end the matter.  I refer in this context to Re Beale and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714, wherein Deputy President Wright QC noted at paragraph 33, that:

33.In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person's past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.

81.     As to deterrence, I cite with approval firstly clauses 30 and 31 of the Respondent’s Statement of Facts and Contentions reading as follows:

General deterrence

30.The respondent  contends that the refusal of the visa will send a clear message to others that conduct of the type engaged in by the visa applicant will not be rewarded. Further, non-citizens can expect to be refused entry or to have their visas refused if they engage in similar conduct. (paragraph 2.11 of the Direction).  See also: Msumba v Department of Immigration and Multicultural Affairs [2000] AATA 87 at [39], Tremlett v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244 at [57] and Gorges v Minister for Immigration and Multicultural Affairs [2002] AATA 89 at [477]; Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156 at 46]

31.In Re Ayaad and MIMA [2000] AATA 935 at paragraph 47, Purvis DP stated that:

These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.

82.     I refer also to clause 62 of the First Poon Decision reading as follows:

62.Turning to the primary considerations which are relevant in this case the Tribunal believes that in regard to the protection of the Australian community, this is a case where significant weight should be attached to the issue of general deterrence.  That issue is linked as well to the expectations of the Australian community, the other primary consideration to which the Tribunal must have regard.  The Tribunal has no doubt that it is a legitimate expectation of the Australian community that Mr Ngai should not be rewarded for his persistent pattern of immigration malpractice and deceit.  To grant Mr Ngai a visa in these circumstances would send entirely the wrong message to others contemplating similar unlawful conduct in order to circumvent Australia's immigration laws and procedures.  Behaviour like that engaged in by Mr Ngai should be actively and firmly discouraged through the refusal of a visa.  The hardship and disruption that such a decision may cause in the lives of Mr Ngai and Ms Poon cannot in any way outweigh such considerations.  Thus the decision under review is affirmed.

83.     It cannot be doubted that the offences by the Visa Applicant were very serious within clause 2.6 of the Direction, which relevantly states:

a.       The seriousness and nature of the conduct

2.6      It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

…

(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

…

84.     In respect of clause 2.12, which concerns the expectations of the Australian public, it is my view that the vast majority of the Australian public would be in favour of the refusal of a visa to someone who has behaved in the manner described.

85.     In respect of clause 2.17 of the Direction, which addresses other considerations, the refusal of a visa will undoubtedly cause hardship to the Applicant, but she is by no means blameless and she was, as has been indicated, fully aware of the risks she was running when she married her fourth husband, the Visa Applicant.

86.     I have previously dealt with Exhibit A3 and the fact that I do not accept that the Applicant could not find work in Hong Kong.  I consider, on the contrary, that her skills are exactly of the kind which would be desirable and, moreover, well paid in Hong Kong.  As set out previously, the real truth of the matter is that she prefers Australia and does not want to return to Hong Kong for reasons entirely unconnected with an inability to find work.  The fact, in other words, is that the Applicant does not want to go back to Hong Kong and it is not hard to understand why.  Having obtained a humanitarian residence visa for Australia, the Applicant is not prepared to contemplate giving up residence in Australia.  The fact that she has a son aged 27 is of marginal, if any, relevance.  The real truth is that there is a choice involved and she has made hers.  Her threat of further legal action is, having regard to what has occurred in the past, only too likely.  It is, of course, true to say that every citizen of Australia is entitled to bring legal proceedings where the law entitles that citizen to do so, but it must be remembered that legal proceedings of this nature carry a cost and inconvenience factor, not only to Applicant but also to the Respondent.  

87.     Mr Karp suggested that the Visa Applicant has been away from Australia for nearly 10 years and that this is sufficient punishment.  I do not think that this is a relevant observation, and it is certainly not a relevant test; punishment does not enter into deliberations of this kind. It must be noted also that he may have been physically out of Australia but the stream of applications has continued. 

88.     This is not a case in which it would be proper to exercise the discretion and accordingly the decision under review is affirmed.

I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President

Signed:   .......[sgd].....................................................................
               Associate

Dates of Hearing:  19 and 20 November 2007
Date of Decision:  20 December 2007

Solicitor for the Applicant:        Ms J Kinslor, Christopher Levingston & Associates

Counsel for the Applicant:        Mr L. Karp

Solicitor for the Respondent:     Mr B. O’Brien, DLA Phillips Fox